Pleadings Overview

 

Cases

O’Flynn -v- Buckley & ors

[2009] IESC 3 (22 January 2009)

Kearns J

 

DECISION

 

I believe it is possible to decide this case other than by reference to the delay on the part of the defendants in seeking relief. The case argued on behalf of the MIB relies almost entirely on two unreported cases in the High Court, namely, Devereux v. Minister for Finance and MIBI (Unreported, High Court, O’Sullivan J., 10th February, 1998) and Kavanagh v. Reilly and the MIBI (Unreported, High Court, Morris J., 14th October, 1996). Both cases are referred to by Jones in Counsel’s Note: ‘Citing the M.I.B. of Ireland as a co-defendant’, (1998) 9 (3) B.R. 450.

 

In the Devereux case, the plaintiff was a passenger in a troop carrier truck owned by the first named defendant. The troop carrier made a stop to avoid an unidentified and untraced motorist and in the process the plaintiff was thrown forward and badly injured. The Bureau was sued due to the clear involvement of the unidentified and untraced motorist along with the Minister for Finance who was responsible for the driver of the troop carrier.

 

In those circumstances, the High Court (O’Sullivan J.) had no difficulty in reaching the conclusion that he should dismiss the proceedings on the basis that the same were misconceived and not in accordance with clause 2 of the Agreement. In delivering judgment he stated:-

“In this case the Bureau must be cited as a sole defendant under Clause 2.3, therefore the proceedings are misconceived.”

O’Sullivan J. considered counsel’s note of the ex tempore judgment of Morris J. in Kavanagh v. Reilly and M.I.B. This was another case where the M.I.B. had been joined as a co-defendant in circumstances where there was an identified driver and an untraced driver. In that case Morris J. stated:-

“I believe that the Bureau is entitled to make complaint in relation to this. The Bureau have no intention of taking the plaintiff short in its requirement that it be sued as sole defendant, and the claims of the plaintiff against the Bureau will be dealt with on its merits. At this stage the provisions of the statute will not be raised as the Bureau considers that it does not arise.

In my view the court should not intervene with the provisions of the Agreement which have been set forth between the Minister and the Bureau or put an inappropriate burden on the Bureau in relation to its responsibility under the Agreement. The Agreement has been worked out carefully between the parties and there is in my view a logic and good business sense behind the provisions of the Agreement. In these circumstances I believe it is correct and proper that the plaintiff should conform with it and I will therefore strike out the proceedings but I will make no order as to the costs of this application.”

However, neither of these cases speak to the unusual facts of this case where there is a combination of insured and uninsured drivers and the possible involvement of an untraced driver. In so far as the plaintiffs claim lay against an uninsured but identified driver, they were perfectly entitled to join the M.I.B. as a co-defendant in the proceedings under and by virtue of Clause 2.2 of the Agreement. The difficulty arises because the M.I.B. is also involved in its capacity as a body responsible to compensate the plaintiff in respect of the driving of an untraced motorist who may also have caused or contributed to the deceased’s injuries. The M.I.B. is thus involved wearing two different hats. Without going into detail, Mr. Edward Comyn, senior counsel on behalf of the M.I.B., pointed out that different practical consequences could arise for the M.I.B. depending on whether it was involved on behalf of an uninsured driver directly or where its involvement arose through an “insurer concerned” in circumstances where there was a policy (but one which did not cover the particular driver) or where its only involvement was as the body amenable to an injured plaintiff where the entire responsibility attached to the untraced driver. He also submitted, I think correctly, that the M.I.B. is entitled to require that litigants respect the strict conditions laid down in the Agreement as a pre-condition to the recovery of compensation.

 

Even taking Mr. Comyn’s arguments and submissions at their highest point, they do not seem to me to meet or overcome the very simple rejoinder offered on behalf of the plaintiffs which is to the effect that the High Court, either prior to trial or at the trial itself, is entitled as a matter of equity and fairness to direct the disjoinder of the issues complained of by the appellant pursuant to Order 18, rule 1 of the Rules of the Superior Courts, 1986. That rule provides as follows:-

“Subject to the rules of this Order, the plaintiff may unite in the same action several causes of action; but if it appears to the court that any such causes of action cannot be conveniently tried or disposed of together the court may order separate trials of any such causes of action to be had or may make such other order as may be necessary or expedient for the separate disposal thereof.”

In addition Order 18, rule 8 of the Rules of the Superior Courts provides:-

“Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court for an order confining the action to such of the causes of action as may be conveniently disposed of together.”

Having considered all the circumstances, I am satisfied that the interests of justice and all of the legitimate concerns of the M.I.B. would be met by an order prior to trial providing for the disjoinder of issues under Order 18 of the Rules of the Superior Courts. In my view it would on the facts of this case be a superfluous requirement verging upon the absurd to require the plaintiffs to institute a second set of proceedings where the M.I.B. had been validly joined in a particular capacity in the first instance and where the possible involvement of an untraced motorist had been flagged from the time of the originating letter notifying the claims to the M.I.B. without any suggestion from M.I.B. that a second set of proceedings might be necessary. On the face of it there was and is no irregularity in the form and constitution of the proceedings.

 

I would also accept the arguments put forward on behalf of the plaintiffs that the delay in moving for relief in this case is such as to disentitle the M.I.B. to the relief sought. As far back as the initiating letter of 12th December, 2000, the plaintiffs’ legal advisors had made it clear that they were seeking to attach blame for the accident not only to two identified drivers, one of whom was uninsured, but flagged also the possibility (however remote it might have been) that a further unidentified driver might also have been involved. This may be seen as a prudent ‘belt and braces’ type approach to the proposed proceedings by the plaintiffs’ advisors. There was thereafter a delay of four years on the part of M.I.B. in moving for the relief now being sought. During that lengthy period of time, the MIB had its interests represented by three different insurance companies and two different firms of solicitors and at no time prior to 13th December, 2004 did it indicate that it had a difficulty with the form of the proceedings. This was the position notwithstanding that the M.I.B. had invoked its rights under Clause 3(7) of the Agreement in August, 2002 to require the plaintiffs to join the fourth named defendant to the proceedings. No point was taken at that time that the form of the proceedings was incorrect. It is difficult to understand how, when sued in 2001 both in respect of insured and uninsured drivers in proceedings which also took into account the possible involvement of an untraced driver, the MIB could only ask in 2002 that a co-defendant be joined and then leave it until December 2004 to make the case that they should not be in the proceedings at all because of the reference to the possible involvement of an untraced driver in the accident. Quite apart from the obvious distress to Mr. O’Flynn’s family occasioned by the M.I.B.’s failure to raise the point now in issue in timely fashion, the suggestion made during the course of argument that it was open to the plaintiffs to start fresh but separate proceedings against the M.I.B. in respect of the untraced driver (the involvement of whom is at best a possibility only) strikes me as wholly unimpressive given that no undertaking is forthcoming from the M.I.B. not to raise the Statute of Limitations by way of defence in any such further proceedings.

 

This Court has made clear in a number of recent cases that delays in procedural matters which may have been tolerable in previous times may no longer be tolerated. In this context, I refer to decisions delivered by this Court in Gilroy v. Flynn [2005] 1 ILRM 290, Stephens v. Flynn Ltd [2008] IESC 4 and Desmond v. MGN Ltd [2008] IESC 56, all of which demonstrate an ever increasing reluctance on the part of this Court to condone delays in procedural matters. In truth the only response to the arguments on delay in this case has been to suggest that the plaintiffs were also guilty of delay, a contention which, having regard to the nature of the point taken, is one singularly lacking in persuasive weight, not least because it is a point which could have been taken at the outset, that is to say either before or at the time proceedings were commenced. I would dismiss the appeal on grounds of delay also.

 

 

 

 

 

 

 

 

 Adam v. Minister for Justice, Equality and Law Reform

[2001] IESC 38; [2001] 2 ILRM 452

 

McGuimess J

 

Submissions of Counsel

27. Senior Counsel for the Applicants in the Adam proceedings, Mr Shipsey, submitted that the entire scheme of judicial review proceedings, as governed by Order 84 of the Rules of the Superior Courts was radically different from that of ordinary plenary proceedings. The approach of the Court in the case of Barry v Buckley [1981] IR 306 was not suitable for judicial review proceedings and was not applicable to them. In ordinary plenary proceedings the originating pleadings – plenary summons, statement of claim – were produced solely by the Plaintiff and as such were governed by Order 19 Rule 28 of the Rules of the Superior Courts which enabled the Court to order any pleading to be struck out on the ground that it disclosed no reasonable cause of action. This provided a necessary “filtering mechanism” whereby the Court could prevent cases with no rational basis coming to hearing.

 

28. In the case of judicial review, however, this “filtering mechanism” was already in place. Order 84 set out the necessity for the Applicant in judicial review proceedings to obtain leave from the High Court before his proceedings could be issued. Leave would not be granted in the first place if the proceedings were baseless, vexatious or frivolous. The test to be applied by the Court in granting leave had been set out by the Court in G v Director of Prosecutions [1994] 1 IR 374 . In his judgment in that case Finlay C.J. had set out the test as follows:

 

“An Applicant must satisfy the Court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-

(a) that he has a sufficient interest in the matter to which the application relates to comply with Rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the Applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in Order 84 Rule 21(1), or that the Court is satisfied that there is a good reason for extending the time limit…….

(e) That the only effective remedy, on the facts established by the Applicant, which the Applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, more appropriate method of procedure.”

 

29. In the same case Denham J. had referred to the burden of proof in an application for leave to issue judicial review proceedings as follows:

 

“The burden of proof on an Applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts Order 84 Rule 20 is light. The Applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the Applicant has such a stateable case.”

 

In the Adam proceedings the Applicants application for leave had been carefully considered by Kinlen J. The learned judge had obviously considered the matter fully, since he had permitted only a portion of the reliefs sought by the Applicants in their statement of grounds. O’Donovan J. in his judgment in the High Court had accepted that this process of evaluation and filtering had been carried out by Kinlen J. This being so, Counsel argued, it could not be open to a second High Court judge to set aside the decision of Kinlen J. and to discharge the leave granted by him. This was akin to one High Court judge acting as an appellate Court from the decision of another High Court judge. The proper route would be for the Respondent to appeal to this Court against the grant of leave.

30. Mr Shipsey conceded that the High Court had an inherent jurisdiction to set aside the grant of leave in judicial review proceedings where there had been material non-disclosure or other conduct which was akin to lack of bona fides on the part of the Applicant, and in this connection he referred to the judgment of Kelly J. in Adams v Director of Public Prosecutions (unreported High Court April 12th 2000). This, he said, was an exception to the general rule and there was no suggestion of lack of bona fides in connection with the present application. In his judgment in the instant case O’Donovan J. had accepted that the case was not covered by Order 19 Rule 28 but had held that the Court had a wide ranging inherent jurisdiction to set aside the grant of leave and, indeed, to strike out the entire proceedings. In so doing the learned trial judge had relied on the judgment of McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 145 . That case was not, however, a judicial review case and there had been no comparable filtering and evaluation procedure applied to it. It did not, therefore, provide an authority for the proposition that the Court had an inherent jurisdiction to set aside the leave already granted in judicial review proceedings. Indeed there was no authority for such a proposition.

 

31. Mr Shipsey also argued that, if this Court held that there was an inherent jurisdiction to set aside leave which had already been granted, this should be done only in extreme circumstances, where it was crystal clear that the application did not meet the test set out in G v DPP. Order 84 already provided a number of protections for public authorities who were likely to be subject to judicial review. The filtering process of seeking leave existed to prevent undue and unnecessary harrying of public authorities.

 

32. As far as the second issue was concerned, Mr Shipsey submitted that the application as set out in the pleadings met the tests set out in G v DPP . He referred to the decision of Keane J. (as he then was) in Irish Permanent Building Society v Caldwell [1979] ILRM 273 where the learned judge held that the jurisdiction to strike out proceedings ought not to be exercised in cases raising complex and novel issues of law. Mr Shipsey submitted that in the instant case important new issues of law were raised in regard to the relationship between Irish law, the Treaty of European Union, and the European Convention on Human Rights. He accepted that the averments of the Applicants solicitor, Mr Pendred, in his original grounding affidavit were somewhat bare, but submitted that the pleadings were open to amendment and that further affidavits could be filed.

 

33. Senior Counsel for Mr Iordache, Mr Horgan, adopted Mr Shipsey’s arguments. He went on to refer to the judgment of Kelly J. in Landers v Garda Siochana Complaints Board [1997] 3 IR 347 where the learned judge had accepted that the Applicants’ judicial review proceedings could be amended and that their departure from the procedure provided in Order 84 was not fatal to their claim in circumstances where the procedure actually adopted did not amount to abuse of process of the High Court. Kelly J. had held that an action should not be dismissed if the statement of claim admitted of an amendment which might save it. Mr Horgan submitted that undue obstacles should not be put in the way of an Applicant seeking leave to issue judicial review proceedings; amendments of the pleadings should be permitted and there was power to extend time where necessary. Counsel went on to argue that by virtue of its ratification of the Treaty of the European Union the State was estopped from asserting that the Irish Courts had no part in the enforcement of the provisions of the European Convention on Human Rights. The jurisprudence of the European Court of Justice together with the provisions of Title 1 of the of Treaty of the European Union contradicted the proposition that an argument on behalf of the Applicant that the State had violated his rights under the European Convention was doomed to failure before an Irish Court. It was open to an Irish Court to draw inspiration from the European Convention in order to determine whether an Applicants’ right to fair procedures had been violated.

 

In the Iordache proceedings the order granting leave had permitted the Applicant to seek an order of mandamus compelling the second and third named Respondents to institute proceedings against Romania under the provisions of the European Convention. Hr Horgan stated that this relief was no longer sought by the Applicant.

34. Senior Counsel for the Respondents in both cases, Mr O’Donnell, dealt first with the issue of the jurisdiction of the learned High Court Judges to discharge the leave to issue judicial review proceedings which had already been granted by the High Court. He submitted that the conclusions reached by O’Donovan J. and Morris P. in their judgments were justified by fundamental principle, as well as by the authorities referred to in the judgments. It had been suggested that where a Respondent in judicial review proceedings was aggrieved by the making of an order granting leave the correct remedy was to bring an appeal to this Court. In practice such an appeal would raise serious difficulty and would necessarily involve this Court considering arguments in evidence that had never been considered by the High Court. In such circumstances this Court would effectively be acting as a Court of first instance rather than a Court of appeal, a role which the Court had repeatedly and empathetically rejected.

 

35. Counsel for the Applicants had conceded that the High Court had jurisdiction to discharge the order giving leave where there was a lack of uberrima fides in the original ex parte application. Once the principle of inherent jurisdiction was accepted it must extend to other situations where the case made at the ex-parte stage could be shown , on application by the Respondent, to be unstateable, without basis, or vexatious. He agreed with Mr Shipsey that this course should only be taken in a very clear case but he was in no doubt that the jurisdiction existed.

 

As far as the Adam and Iordache cases were concerned, Mr O’Donnell submitted that it was entirely suitable for the High Court to exercise its inherent jurisdiction to discharge the leave and strike out the proceedings. These were judicial review proceedings, not appeal proceedings; it was the method whereby the Asylum authorities had reached their decisions that was under challenge rather than the decisions themselves. In the pleadings in both cases no attempt at all had been made to identify particular defects in the procedure used; there was no assertion that unfair procedures had been used; there was no suggestion that the decisions were unreasonable in the sense defined in the Stardust and O’Keeffe decisions, and no concrete evidence was provided to establish the danger of persecution (as defined by the Geneva Convention) which would be faced by the Applicants if they were returned to Romania.

36. The essential complaint made by the Applicants in the proceedings was that the Minister was obliged to take into account the provisions of the European Convention on Human Rights in exercising his powers in regard to Asylum seekers and refugees. It was common case that the Convention had not as yet been incorporated into domestic law in this state. Mr O’Donnell referred to the decision of this Court in In Re O’Láighleis [1960] IR 93 and to the judgment of Barrington J. in the more recent decision in the case of Doyle v Commissioner of An Garda Siochana [1991] 1 IR 249 . Barrington J. had stated (at page 263):-

 

“Ireland is a signatory of the European Convention on Human Rights and accepts the right of individual petition. But Ireland takes the dualistic approach to its international obligations and the European Convention is not part of the domestic law of Ireland. The Convention may overlap with certain provisions of Irish constitutional law and it may be helpful to an Irish Court to look at the Convention when it is attempting to identify unspecified rights guaranteed by Article 40.3 of the Constitution. Alternatively, the Convention may, in certain circumstances influence Irish law through European community law. But the Convention is not part of Irish domestic law and the Irish Court has no part in its enforcement.”

 

37. Mr O’Donnell accepted that both this Court and the High Court had had recourse to Convention jurisprudence in, for example, constitutional proceedings, but such recourse to the Convention did not involve its enforcement by an Irish Court as was sought in the present proceedings.

 

38. As far as Mr Horgan’s argument on the effect of Title 1 of the Treaty on European Union was concerned, Mr O’Donnell did not accept that Article F.2 of the Treaty had the effect of incorporating the European Convention into the domestic law of the State. In particular it could not do so in relation to an area of law such as immigration policy which fell outside the field of Community law.

 

 

The Law and Conclusions

39. Through their Counsel, the Applicants in both sets of proceedings argued that, once leave to issue judicial review proceedings has been granted, the High Court has no jurisdiction to discharge that leave. At the stage of the ex parte application for leave the necessary filtering procedure has taken place, and the Court has decided that the application has met the tests set out in G v DPP which I have quoted above. If the Respondent wishes to challenge this decision, the correct remedy is to appeal to this Court.

 

40. In the instant cases both O’Donovan J. in the Adam case and Morris P. in the Iordache case held that the High Court had an inherent jurisdiction to discharge the order giving leave and to strike out the proceedings. Both judges relied in the main on the decision of McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 145 , and in particular on the passage at page 147 of the report where the learned judge stated:-

 

“In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the Courts in the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any party affected by that order. An ex parte order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their sides of the case or to correct errors in the original evidence or submissions before the Court. It would be quite unjust that an order could be made against the party in its absence and without notice to it which could not be reviewed on the application of the party affected.”

 

41. Both Mr Shipsey and Mr Horgan correctly point out that Voluntary Purchasing v Insurco is not a judicial review case, and that the pleadings in that case had not been subjected to the filtering process of the application for leave. So far as I am aware they are also correct in saying that there is no specific Irish authority prior to the present cases which establishes that the High Court has jurisdiction to discharge an order for leave already given.

 

42. Even if it is true that the jurisdiction point has not specifically been argued and decided, there are, however, cases where the inherent jurisdiction of the Court to discharge leave has been assumed and put into effect. Mr Shipsey himself has referred to the judgment of Kelly J. in Adams v DPP (High Court unreported 12th April 2000), where the learned trial judge discharged the leave earlier granted by O’Neill J. as against the third named Respondent, described in the pleadings as “Her Majesty’s Secretary of State for Home Affairs” . Mr Shipsey distinguished the Adams case as being a case where there was material nondisclosure or other conduct akin to a lack of bona fides on the part of the Applicant. He accepted that the Court had jurisdiction to discharge the leave in such circumstances.

 

43. In the first place, in my view, Kelly J’s decision in the Adams case was by no means solely dependant on material nondisclosure or lack of bona fides . In his judgment he dealt in detail with the lack of any proper service of the proceedings and the nature of the proceedings themselves before turning to consider what he saw as lack of bona fides . Secondly, the Adams decision was under appeal at the time when the instant cases were heard before this Court. Judgment has now issued on the appeal (6th March 2001); this Court upheld the learned High Court judge. However, this Court dealt with the matter as being one where the Court lacked basic jurisdiction and where the case was unstateable; it did not deal, other than by a passing reference, to the matter of bona fides .

 

44. In the earlier case of Landers v The Garda Complaints Board [1997] 3 IR 347, which was also a judicial review case in origin, the third named Defendant applied to have the claim against him struck out, relying on the inherent jurisdiction of the Court. While the circumstances were not the same, and in the event Kelly J. refused to strike out the proceedings, it does not appear to have been suggested that the Court had no jurisdiction to strike out what were basically judicial review proceedings.

 

45. In their book Administrative Law in Ireland, Hogan and Morgan discussed this question at pages 708 to 709 under the heading “Appealing or setting aside the grant of leave” , as follows:-

 

“But is it also the case that a putative Respondent could appeal the grant of leave? The existence of such a right of appeal is more doubtful and not supported by present practice. In this regard we may note the comments of McCarthy J. in The State (Hughes) v O’Hanrahan [1986] ILRM 218 at 211 where he doubted that without giving any reason whether anyone (other than the Applicants) can appeal against an order ex parte. The proper course of action for a Respondent to object to the grant of leave would seem to be to bring a motion seeking to have it set aside. The existence of such a jurisdiction was recognised by Carswell J. (as he then was) in Re Savage’s Application [1991] NI 103 . While recognising that the burden on a Respondent who moved the Court to have the grant of leave set aside was a ‘heavy one’, nevertheless:-

‘If on mature consideration of the facts, and that the benefit of the arguments presented to me by both sides, I now accept that there is not an arguable case on the facts, then I think that I should set aside the grant of leave.’

In effect, therefore, this jurisdiction to set aside is but an example in this particular context of a more general power to strike out on the ground that the proceedings are ‘clearly unsustainable’. If anything, however, this jurisdiction to set aside must be even more sparingly exercised, in that the granting of leave by the High Court presupposes – in a way that the mere issuing of a plenary summons does not – that the case is at least an arguable one.”

 

46. In England the rules governing the application for leave to issue judicial review proceedings differ considerably from the Irish rules; nevertheless the issue of the discharging of leave once given has also arisen for consideration. In the most recent edition of Lewis: Judicial Remedies in Public Law, the author states at page 283 para 9-060:

 

“There is an inherent jurisdiction in the Court to set aside orders made without notice having been given to the other party, including the grant of permission to apply for judicial review. That is the appropriate and usual method for challenging the grant of permission. The Courts have emphasised, however, that the jurisdiction is to be exercised sparingly and that they will only set aside permission in a very plain case.”

 

47. In De Smith, Woolf and Jowell: Judicial Review of Administrative Action the question is dealt with at page 667 para 15.025 as follows:-

 

“Where leave has been granted, a Respondent may apply to set aside a grant of leave on the grounds that the application discloses absolutely no arguable case or that there has not been frank disclosure by the Applicant of all material matters both of fact and law. However except in very clear cases such applications are not looked on with favour by the Courts.”

 

48. Both English authors refer to the case of R v Secretary of State for the Home Department (ex parte Chinoy) [1991] C.O.D. 381 . In that case the Applicant sought to judicially review the decision of the British Home Secretary to surrender him to the United States authorities. Leave was granted by Simon Brown J. and the Home Secretary subsequently sought to set aside that leave. His application was heard by two judges of the Queens Bench Division. In the course of his judgment Bingham L.J. referred to the argument made by Counsel on behalf of the Applicant, who had submitted that if there was any jurisdiction to set aside the order giving leave it was a jurisdiction which might only be exercised in the case of nondisclosure or in the case of new factual developments since the date of the grant of leave. The learned judge commented:-

 

“I would unhesitatingly accept that those are grounds upon which the Court could exercise its discretion to set aside leave previously given. But I would not accept the suggestion that the Court’s jurisdiction may only be exercised where nondisclosure or new factual developments are demonstrated. It seems to me that it is a jurisdiction which exists and which the Court may exercise if it is satisfied on inter partes argument that the leave is one that plainly should not have been granted.

 

I would, however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly. It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing. The only purpose would be to increase costs and lengthen delays, both of which would be regrettable results. I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the Court will only grant in a very plain case. I am, however, satisfied, as I have indicated, that the Court does have discretion to grant such an order if satisfied that it is a proper order in all the circumstances.”

 

49. In my view the learned trial judges in the instant cases, O’Donovan J. and Morris P. , were correct in deciding that this Court has a jurisdiction to set aside an order granting leave which has been made on the basis of an ex parte application. However, I would accept the submission of Mr Shipsey, with which Mr O’Donnell agrees, that this jurisdiction should only be exercised very sparingly and in a very plain case. The danger outlined by Bingham L.J. in the passage quoted above would be equally applicable in this jurisdiction. One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave. Each application would probably require considerable argument – perhaps with further affidavits and/or discovery. Where leave was discharged, an appeal would lie to this Court. If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this Court. Such a procedure would result in a wasteful expenditure of Court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the Court’s inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases.

 

50. Should, then, the inherent jurisdiction be used in the instant cases? I would accept that Mr Shipsey is correct in referring the Court to the tests set out by the then Chief Justice in G v DPP and to the burden of proof as set out by Denham J. in the same case. The first test is whether the Applicants have “a sufficient interest in the matter”. In the Adam proceedings it is established by the affidavit of Michael Quinn that quite a number of the listed Applicants either no longer have a proper interest in the proceedings because they have been permitted to remain in this country, or have not yet acquired such an interest, since their applications for refugee status have not yet been decided. Even if one considers the remaining Applicants, they have in common the fact that they are Romanian nationals; that they are now, one presumes, in this country; and that they do not wish to return to Romania. These simple facts do not go far enough to show, in the case of each Applicant, what is his or her specific “interest” in the proceedings. I would be in agreement with O’Donovan J. in this case in holding that it is a most unsuitable procedure to have the applications of a large number of Applicants grouped together in one set of pleadings, grounded on one non-specific affidavit, as they are here.

 

51. However, the most serious difficulties for the Applicants in both cases arise under tests (b) and (c) as set out in G v DPP – that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review and that on those facts an arguable case in law could be made that the Applicant was entitled to the relief which he sought.

 

52. In the present cases the applications were initially grounded on the affidavits of Mr Pendred, Solicitor, which are couched in the most general terms. He avers that the Applicants are subject to persecution in Romania in various ways which reflect the wording of Articles of the ECHR. Subsequent to the granting of leave a number of further affidavits were sworn by individual Applicants. Again these were in very general terms, simply expressing a fear that if the Deponent is returned to Romania he or she will suffer persecution and abuse of his or her human rights. The affidavits exhibit in each case the documents relevant to the Applicants’ application for refugee status and its rejection by the authorities. It is, it seems, left to the Court itself to peruse these documents and to extract from them what might be actual grounds for judicial review. This is in no way a satisfactory procedure. It cannot be too often said that judicial review is not a further appeal against a decision which the Applicant wishes to overturn. It is a review of the manner and method whereby that decision was reached to ascertain whether correct procedures were used which were intra vires the decision maker and in accordance with natural and constitutional justice, and, in some cases, whether the decision was “reasonable” in the sense defined in the Stardust and O’Keeffe decisions. In an application for leave to issue judicial review proceedings in regard to a decision made by a public authority the Applicant must set out on affidavit at least sufficient detail to establish the manner in which he claims the decision making procedure was flawed or in error.

 

53. In the instant cases I am not to be taken as saying that grounds for judicial review could not in any circumstances be made out by any or all of the Applicants. Coincidentally, very shortly after the hearing of the present appeals by this Court, a judgment of the English Court of Appeal in an asylum case was reported – R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719 . This case concerned a Turkish Kurd who had entered the United Kingdom illegally and claimed asylum. His claim was rejected by the Secretary of State and on appeal by the special adjudicator. After the Immigration Appeal Tribunal had refused him leave to appeal, Mr Turgut applied to the Secretary of State for exceptional leave to remain. This too was refused. The Applicant challenged these decisions on the grounds of irrationality and the judgments of Simon Brown L.J. and Schiemann L.J. (with both of whom Thorpe L.J. agreed) contain a most interesting and far reaching consideration of the approach of the Courts to the rationality or otherwise of decisions in asylum cases in the light of the European Convention on Human Rights. In that case some 1500 pages of specific evidence were submitted to the Court relating to the danger that the Applicant’s human rights would be abused if he was returned to Turkey, and the challenge to the rationality of the Respondent’s decision was fully pleaded.

 

54. On the pleadings in the instant cases, however, there is no way in which either this Court or the Court below could assess whether the facts support a stateable ground for the relief sought, because in neither the Adam proceedings nor the Iordache proceedings did the pleadings set out any specific evidence that the Minister had failed to have regard to the situation in Romania when considering the position of the Applicants. Nor was there any evidence that appropriate procedures had not been complied with or that there was any breach of the principles of natural or constitutional justice. It is not so much that the Applicants have not put forward a stateable case as that they have not put forward any case at all within the confines of judicial review proceedings.

 

55. For these reasons I would dismiss both appeals and affirm the orders of the learned High Court judges. In the circumstances it is unnecessary to consider such arguments as were made concerning the European Convention on Human Rights and the Treaty of European Union.

 

Barrett t/a Corporate Recovery Services v Beglan & Anor

[2007] IEHC 188 (14 June 2007)

 

 

 

 

Judgment of Mr Justice Michael Peart delivered on the 14th day of June 2007:

 

 

 

 

The first named defendant seeks an order striking out the plaintiff’s proceedings against him pursuant to either O. 19, r. 27 RSC or O.19, r. 28 RSC. I shall refer to the first named defendant as “the defendant” as he is the sole moving party of the present motion. The second named defendant is not a party to this motion and may be no longer trading.

 

The former rule permits the Court to strike out any matter in any indorsement or pleading which may be “unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action”.

 

The latter rule on the other hand permits the Court to strike out the plaintiff’s claim where “it discloses no reasonable cause of action”, and “in any such case or in the case of an action ………being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed”.

 

I will proceed with this application on the basis of the latter rule, namely O. 19, r. 28 RSC.

By way of brief background to this application, it appears that the plaintiff and the defendant came into contact at a time when the defendant was in some financial difficulty. The plaintiff appears to have been willing to lend him some money to assist in these difficulties at the end of November 2001.

 

The papers filed on this application reveal that on that date the two parties signed an agreement which has been exhibited. This is a hand-written document prepared and written by the plaintiff. It has been signed by each party. It simply states that in consideration of a drawdown of loan facilities referred to in a letter from the defendant’s solicitors of the same date a sum of €3000 was received by the defendant, and that the defendant offered as security for this loan certain property comprised in Folio 157 of the Register of Freeholders, Co. Westmeath. The defendant also acknowledged in this document that his property was “at risk of sale should the loan be defaulted upon in the terms of such agreement “(sic). There is another annexed document relating to a facility fee and an applicable interest rate of 10% and there is mention of a repayment date of the 30th May 2002.

 

There is also among the papers exhibited an attendance note made by the defendant’s solicitor on the 30th November 2001 in which the solicitor notes that he had a meeting with the defendant that morning and that he was instructed that the plaintiff was willing to lend a sum of £8000. The solicitor also notes that he rang the plaintiff to discuss this, and, inter alia, that the solicitor explained that he was willing to give an undertaking in relation to the title deeds of the lands which were being offered as security; but that he could not advise his client until he knew the full terms of the loan.

 

Since that meeting with the defendant is noted as having taken place at 9.40am, I am assuming that the agreement written out by the defendant and signed as of that date by both parties was written out after 9.40am on that date, since it purports to set out the details of the loan arrangement.

 

A form of “Client Authority and Retainer” also appears to have been prepared by the defendant’s solicitor and sent as a draft to the plaintiff by letter dated 30th November 2001. As matters developed, no undertaking was ever given by the defendant’s solicitor to the plaintiff. However, the plaintiff has exhibited from his own file a copy of the “Client Authority and Retainer” form referred to and which appears to have been signed by the plaintiff and defendant. However, the solicitors say that this document was never sent to them, and that they never acted upon it by giving any undertaking in respect of the title deeds to the lands referred to. In fact it appears that the first occasion on which they saw the copy of the signed Client Authority and Retainer form was when the plaintiff sent this to them on the 11th June 2003. It would appear that by that date the plaintiff had lent further sums from time to time to the defendant, and was seeking security for a sum of about €16500. The solicitors stated that they would need to get their client’s instructions in relation to that request.

 

It appears to be not in dispute that between the 30th November 2001 and 30th December 2001 a sum of £8000 was loaned to the defendant by the plaintiff. It is also not in dispute that it was not repaid by the 30th May 2002. This is the only sum referred to in the agreement dated £8000. The loan facilities referred to in that document are those referred to in the letter of the same date from the defendant’s solicitors, and that letter refers to a loan of “approximately £8000” only and not to any future advances.

 

There was correspondence between the defendant’s solicitors and the plaintiff in June/July 2003 as to the amount which may be due to the plaintiff and the terms on which the solicitor was prepared to give an undertaking. In this regard the defendant was maintaining the position that only a sum of €8157.90 remained owing to the plaintiff on foot of the original loan, and that an undertaking over the deeds of the property would have to be limited to such a sum and not the much larger sum being claimed as owing by the plaintiff. This was unacceptable to the plaintiff.

 

Before the matter of any undertaking was resolved, however, the defendant’s solicitors by letter dated 17th July 2003 sent to the plaintiff a cheque in the sum of €8157.90 in discharge of the balance of the original advance of £8000 referred to in the agreement dated 30th November 2001. The original sum of £8000, when converted into Euro became the sum of €10157.90. A sum of €2000 was repaid by the defendant on the 30th June 2002, leaving this balance of €8157.90. Upon receipt of this cheque the plaintiff wrote to these solicitors stating that he was not accepting this cheque in full settlement of the loan, as there was no allowance made for interest, and it ignored also the additional advances made from time to time since the date of the original advance. The cheque however was retained by the plaintiff and encashed by him.

 

The position is therefore that by the 17th July 2003 the principal of the original loan which was the subject of the agreement dated 30th November 2001, namely £8000 had been repaid. That payment did not address the question of interest on that sum up to the date of payment, or any other sums which may have been advanced from time to time in fairly small amounts subsequent to the original loan.

 

That is a general background against which the plaintiff’s claim as stated in the Plenary Summons and Statement of Claim must be viewed.

 

One could reasonably expect that the plaintiff might have issued proceedings in either the District Court or Circuit Court, as may be appropriate, for the recovery of interest on foot of the original agreement, and perhaps further proceedings for the recovery of other sums advanced outside the agreement dated 30th November 2001. However, the plaintiff chose instead to issue High Court proceedings by way of Plenary Summons against both the defendant, Michael Beglan, and a company called ERT Foundation Limited which in November 2001 was a company operated by Michael Beglan, and for which the loan from the plaintiff was needed to assist in financial difficulties at that time. These proceedings which commenced on the 27th January 2005 (i.e. some eighteen months after the repayment of the original loan) seek orders for specific performance under three headings, as well as other reliefs. It is best if I set out verbatim the text of the Indorsement of Claim because of the unusual nature of the claims being made therein:

 

The Indorsement of Claim on the Plenary Summons:

“1. An order for specific performance that the first named defendant shall deliver to the plaintiff all the lands comprised in folio 157, area E o/s 34/1 and consisting of approx 0.562 acres, and which was charged to the plaintiff on the 30th November 2001, by way of loan agreement, committed to writing, as witnessed.

 

2. An order for specific performance against the first named defendant of an agreement brokered at Leinster House, Kildare Street, by Fergus Finlay, Philip Mulville and Michael Mulcahy, that the first named defendant Michael Beglan was (a) to immediately assume personal and sole responsibility and sole responsibility for all the debts of the ERT, (b) that Michael Beglan was to find employment in Ireland, to contribute to the accumulating debts, (c) that Michael Beglan would immediately apply for planning permission with a view to selling the aforementioned site to discharge his debts and the debts of the Foundation.
3. An order for specific performance that Michael Beglan, Fergus Finlay and Philip Mulville will personally assume the role of guarantor(s) to Allied Irish bank, Lower Baggot Street and the role of guarantor(s) to the landlords of 34 Upper Fitzwilliam Street, Dublin 2 in place of the plaintiff and/or indemnify the plaintiff herein against any and all claims of the bank, in relation to an overdraft currently standing in the sum of €9062.23, plus accruing interest.

 

4. An order that the first named defendant will cease and desist in setting up a phoenix syndrome activity of the ERT Foundation Limited, or the European Russian Trust, until the hearing of the action herein before this Honourable Court.

 

5. A judgment mortgage in favour of the plaintiff, against the named defendants in the amount of €67,718.74 being the amount legally due and owing to the plaintiff herein.

 

6. Such other order as this Honourable Court shall make.

 

7. Interest pursuant to the Courts Acts.

 

8. Damages.

 

9. Costs.”

 

Some days after these proceedings were issued, they were registered as a lis pendens against the first named defendant.

 

On the 9th March 2005 a Statement of Claim was delivered. This document pleads the original loan agreement dated 30th November 2001 and that the sum loaned thereunder was not repaid in full until July 2003. It is pleaded also that other sums were advanced by the plaintiff in the meantime, and that “it was a term of the agreement(s) that all loans would stand equal to be repaid along with and including any interest accrued over the length of the agreement(s)”. A reading of the documents prepared by the plaintiff and dated the 30th November 2001 does not reveal any such term, and there is no other agreement is pleaded by the plaintiff.

 

The Statement of Claim goes on to plead that “the plaintiff was assured that he would receive the agreed undertaking from the defendant’s solicitors, and that he believed at all times that the defendant was aware “of the agreed undertaking” and “that only when it appeared reasonable that he would be required to transfer his property to meet his indebtedness that Michael Beglan attempted to renege on the agreement”.

 

Thus, the plaintiff is attempting to turn the undertaking referred to into an agreement to transfer the property to the plaintiff, hence the claim at paragraph 1 of the Indorsement of Claim set out above.

 

There follows in the Statement of Claim pleas about the failure of the defendant’s solicitor to provide the undertaking sought by the plaintiff regarding the title deeds to the property, as well as pleas as to the dates and amounts of other sums loaned to the defendant. These are pleaded not to constitute gifts by the plaintiff.

 

Included in this Statement of Claim is then a claim that persons referred to therein as “respondents” owe the plaintiff certain sums in respect of rent and refurbishment of offices at 34, Upper Fitzwilliam Street, Dublin. It is pleaded that an agreement was reached whereby the plaintiff would advance sums required to open these offices and that these sums would be “repaid jointly and severally by the respondents”. These “respondents” are not named as such, but presumably refer to the named defendants herein. It is further pleaded that the plaintiff guaranteed the rent and service charge to the landlord and that a sum of €15650.49 is owed to the plaintiff under this heading.

 

Other sums are pleaded to be owed by the “respondents”, and a claim is made for “special damages” (later quantified as being €1,000,000) for damage “suffered in the breakdown of a 22 year relationship with Allied Irish Bank………on the event of having introduced the respondents to such Branch and having suffered because of the respondents failure to repay the overdraft to the said Bank, standing at present in the sum of €9062.23, plus accruing interest, resulting in the bank” (sic)

 

It is important to note that nowhere in these proceedings is a claim made by the plaintiff for judgment for any liquidated sum representing what the plaintiff claims is the total of the sums allegedly lent to the defendants or respondents referred to. The prayer in the Statement of Claim seeks only the following reliefs:

 

“1a/ An order for specific performance that the first named Respondent shall execute the agreed charge with the plaintiff in all and those lands comprised in Folio 157, area ‘E’ o/s 34/1 in the County of Westmeath.

 

2a/ A judgment mortgage in favour of the plaintiff in the amount of €70,704 being the amount legally due and owing by the first, and second named respondents.

 

3a/ Such other order as this Honourable Court shall make.

 

4a/ Interest pursuant to the Courts Acts.

 

5a/ Special Damages in the sum of €1million euro.

 

6a/ Costs”

These amount to the reliefs now being claimed by the plaintiff despite the other matters set forth in the Indorsement of Claim on the Plenary Summons itself.

 

Before dealing with the substance of the application now made that these proceedings be stayed or dismissed, there is a matter which arises from the documentation filed in these proceedings and which I feel cannot be overlooked and ought to be the subject of comment by me. By the conclusion of argument on this application and after the pleadings and grounding affidavits and exhibits had been opened in full, it appeared to me that the drafting of the documents on the plaintiff’s side fell considerably short of the quality which would normally be expected of solicitor and Counsel. Indeed it seemed to me that had no solicitor or Counsel would have advised and drafted the claims being made in the manner in which they appear. For example the claim for a judgment mortgage over the lands is one simply not known to the law. It is equally clear that a great deal of extraneous matter has been sucked into the pleadings and affidavits, and I will have the opportunity to express a view on the reasons for that later in this judgment.

 

I inquired of Counsel for the plaintiff if I was correct in having formed the view that although the summons was issued by solicitors acting for the plaintiff, and although Counsel’s own name appeared as having signed the Statement of Claim (though not the summons), the fact was that it is the plaintiff himself who substantially prepared the documents which have been filed and served in this case to date. Counsel stated that this was correct. The Court was informed in this regard that in order to keep down costs the plaintiff had essentially drafted the papers in the case, even though they went out under the name of solicitor and Counsel. In my view it is professionally inappropriate for solicitor and Counsel to allow papers to go out in their name in this way, particularly where neither clearly have scrutinised and advised in relation to the contents of same. In this case, it is clear that either the contents were not scrutinised at all, or that even though they were scrutinised by solicitor and/or counsel the plaintiff was not advised in relation to same and they were allowed to be filed and served in their present form without amendment, or finally that any advice which may have been given to the plaintiff in relation to how the documents were drafted was not heeded by the plaintiff and the papers were filed and served in unaltered form. Either way, it is inappropriate, particularly where the claims being made are unusual to say the least and always had little chance of success given the way that they have been worded and framed. No professional, be it solicitor or counsel should allow his or her name to be put to documents prepared by a client for proceedings in any court without ensuring that they are drafted in a way which they can stand over professionally, and in a way which does not constitute an abuse of the process of the Court. In my view the documents filed by the plaintiff in this case to date bear all the hall-marks of amateurism, and no solicitor or counsel should have co-operated in the manner appearing.

 

Conclusions:

 

Clearly while in 2001 the plaintiff was prepared to assist the defendant with his financial difficulties in relation to his business, and did so, relations between the parties have broken down. I am satisfied about a number of things. Firstly, I am satisfied that the defendant has repaid the principal sum of money referred to in the agreement dated 30th November 2001, and did so about eighteen months prior to the issue of these proceedings. On foot of that agreement there may be an outstanding claim for interest. That claim, if being pursued, is one capable of pursuit in the Circuit Court or District court, whichever is appropriate, and certainly does not justify the present proceedings.

 

Secondly, I am satisfied that no undertaking was ever given by the defendant’s solicitor in relation to the deeds to the property referred to, and any attempt to drag those solicitors into this case in the manner which the plaintiff has sought to do in the pleadings and affidavits is misplaced. It is true that the agreement refers to an offer of the lands as security for the loan, and that the defendant acknowledged that his property was at risk should he default on the loan, but no security was put in place on foot of that agreement.

 

Thirdly, I am satisfied that while the plaintiff pleads in the Statement of Claim that a large number of other sums of money were paid by him from time to time for the defendant and that he is owed these sums since they were never a gift, he does not seek judgment for any such amount, but merely “a judgment mortgage in favour of the plaintiff in the amount of €70,704.45”. This claim fails in limine, as being one which any Court could not in any circumstances grant. If on the other hand the plaintiff wishes to sue the defendant for the total of these amounts which he says he has paid for or loaned to the defendant, then he should sue for those amounts in the appropriate way in the appropriate court. At the moment these sums are simply pleaded by way of facts to support the claim for the relief prayed for in the prayer of the Statement of Claim, namely “an order for specific performance that the first named Respondent shall execute the agreed charge with the plaintiff in all and those lands comprised in Folio 157, area ‘E’ o/s 34/1 in the County of Westmeath”, as well as a “judgment mortgage in favour of the plaintiff in the amount of €70,704 being the amount legally due and owing by the first, and second named respondents.

 

The Statement of Claim appears to have abandoned by default any claim as sought in either paragraph 2, 3, or 4 of the Indorsement of Claim. The prayer in the Statement of Claim is limited in the way which I have set out already.

 

Based on the affidavit filed by the plaintiff by way of answer to the defendant’s motion, and based on my understanding of the true nature of any claim which the plaintiff may have against the defendant, I am satisfied that these proceedings are misconceived and an abuse of process. It is clear to me that the plaintiff feels aggrieved that he has helped the defendant and has been left high and dry for his money. But the proceedings issued in any court jurisdiction must not be abused, or used for some collateral or ulterior motive. In my view the plaintiff is using these proceedings in a way which oppressive to the defendant and in a way designed to expose the defendant to expense in order to put additional pressure on him to settle the sums claimed.

 

He has attempted also to drag the defendant’s solicitors into the net, by alleging that they have failed to honour an undertaking and have failed in their professional duties, and has even threatened to make a complaint to the Law Society in that regard. In my view, this is an attempt through these proceedings to pressurise the solicitors into trying to resolve matters for the plaintiff. That is an abuse of process also.

 

The plaintiff in his documentation has displayed a propensity to refer to certain persons whose names would be publicly well-known, and his correspondence has in some instances sought to drag these persons into the claim against the defendant. I believe that the plaintiff is attempting to drag these persons also into the picture so that perhaps they also might through some anticipated embarrassment put pressure upon the defendant to settle matters in dispute with the defendant. That is an abuse of process, particularly where those persons are not parties to this suit and are not in a position to defend them selves, and such contents of the plaintiff’s affidavits may well come within the sort of content covered by O.19, r. 27 RSC, already set forth at the commencement of this judgment, as being “unnecessary or scandalous, or which may tend to prejudice, embarrass……”.

 

However, I am satisfied that the appropriate order to be made in this case is that the present proceeding should be dismissed on the basis that it discloses no reasonable cause of action, and that in part at least the claim is shown by the pleadings to be vexatious. That order is not to be taken as preventing the plaintiff from pursuing any remaining claim he feels he has against any defendant for judgment for a liquidated sum said to be due and owing to him. He has not made such a claim in the present proceedings. Had he done so, this Court may have been in a position to leave in tact such part of the proceedings as sought judgment for a liquidated sum and transferred that claim to the appropriate court for determination. But that is not the case. So the order of the Court is that these proceedings be dismissed.

 

 

 

Behan v. The Medical Council

 

Morris J. [1993] 3 IR        525

 

.

23rd October 1992

 

 

This is an application brought by the plaintiff seeking an order against the first defendant pursuant to O. 19, r. 7 (1) of the Rules of the Superior Courts, 1986, directing it to give further and better particulars to the plaintiff. The letter for particulars is dated the 23rd April, 1992. The background to this case is of importance in considering the issues which arise. The plaintiff is a consultant psychiatrist. One of his patients considered that he had behaved in an unprofessional manner and made a complaint to the Medical Council, which matter came before the Fitness to Practice Committee for an inquiry into the plaintiff’s conduct. Upon the committee communicating with the plaintiff, he questioned a number of matters relating to the inquiry which the committee proposed to carry out, and took issue with the holding of such an inquiry. However on the 5th February, 1990, the plaintiff received notice of the holding of an inquiry by the Committee in accordance with s. 45, sub-s. 3 of the Medical Practitioners Act, 1978. The plaintiff thereupon sought and obtained an order for judicial review and an order staying the holding of the inquiry. He delivered his statement of claim pursuant to this order in which he set out in a comprehensive manner the facts of the case and the complaints which he had as to the manner in which the first defendant

 

had conducted itself in this transaction. To this statement of claim the first defendant entered a defence which, with the exception of paras. 2 and 3 (in which the facts are admitted) and para. 4 (in which a complaint about the plaintiff’s delay is made) the entire thereof, which runs to 24 paragraphs, constitutes a direct traverse and denial of the plaintiff’s claim as set out in his statement of claim and no more.

The defence having been delivered by the first defendant on the 13th July, 1990, on the 23rd April, 1992, the plaintiff served a notice for particulars which runs to 152 paragraphs and a number of these paragraphs are themselves sub-divided into sub-paragraphs. In considering the time gap between the delivery of the defence on the 13th July, 1990, and the service of the notice for particulars on the 23rd April, 1992, it is of importance to appreciate that this is not the first notice for particulars raised by the plaintiff. A previous notice was served but was later withdrawn by the plaintiff either voluntarily or as a result of an undertaking given to the court on his behalf, by counsel who was then acting for him on the occasion of the hearing of the second motion brought by the first defendant to have the plaintiff’s action dismissed for want of prosecution. The plaintiff denies that he gave counsel authority to give any such undertaking to the court. However, this is not material because the first notice for particulars was in fact withdrawn but was replaced by the existing notice for particulars of the 23rd April, 1992, which is no more than a more comprehensive form of the existing notice for particulars which was withdrawn.

The first defendant replied to the notice for particulars on the 25th May, 1992, but the plaintiff being dissatisfied with these particulars now brings the motion to the court to compel the first defendant to give further and better particulars.

Counsel for the first defendant submits that while the first defendant did answer the notice for particulars it was under no obligation to do so and it gave these answers in the hope of expediting the hearing of the case and he now argues that the first defendant should not be required to give any further or better particulars on the grounds that the defence delivered constitutes no more than a traverse to the plaintiff’s claim and he submits that it has never been the practice to require particulars in such circumstances. He relies on  Weinberger v. Inglis  [1918] 1 Ch. 133. That was a case in which the plaintiff sought re-election as a member of the Stock Exchange in London but objection was lodged to his re-election in accordance with the Rules of the Stock Exchange “on the grounds of enemy birth”. The committee of the Stock Exchange then embarked upon the appropriate procedure for considering that objection. However the plaintiff commenced an action impugning the committee’s decision and made various allegations concerning the committee and in the course of the action sought particulars, arising from a traverse in the committee’s defence, of the allegations which he made in his statement of claim. In the course of his judgment, Astbury J. says at p. 137:

“As a general rule the Court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed and this is especially the case where the defendant has confined himself to putting the plaintiff to the proof of allegations in the statement of claim, the onus of establishing which lies upon him.”

This statement must be taken as subject to the purpose or object of particulars and pleadings in general as stated by the Supreme Court in Mahon v. Celbridge Spinning Co. Ltd.  [1967] I.R. 1 in which Fitzgerald J. (as he then was) at p. 3 said “the whole purpose of a pleading, be it a statement of claim, a defence or reply, is to define the issues between the parties, to confine the evidence at the trial to the matters relevant to these issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. In other words a party should know in advance in broad outline the case he will have to meet at the trial”. That was a case in which the court was considering for the first time after the passing of the Civil Liability Act, 1961, the necessity to give particulars of contributory negligence and found that they should be given so as to remove the possibility of the plaintiff being taken by surprise and to enable him to arm himself to meet such allegations of contributory negligence as might be necessary.

Applying the general rule therefore that a party is entitled to such information as will ensure that he is not taken at a disadvantage “by the introduction of matters not fairly to be ascertained from the pleadings”it appears to me that the plaintiff in the present case now finds himself in the position of being fully informed of all matters arising from the first defendant’s defence, to which he is entitled and having considered in detail the notice for particulars of the 23rd April, 1992, and the replies of the 25th May, 1992, I am of the view that the notice for particulars is fully answered and accordingly I refuse the application.

 

 

 

Bula Holdings Ltd & Ors -v- Roche & Ors

 

[2008] IEHC 208

 

 

Edwards J

The Statement of Claim discloses no reasonable cause of action and/or is frivolous and/or vexatious.

 

 

 

96. Introduction

The first relief sought on behalf of the defendants is an Order pursuant to Order 19, rule 28 of the Rules of the Superior Courts, striking out or dismissing the plaintiffs’ claims on the grounds that the Statement of Claim delivered herein discloses no reasonable cause of action and/or the action is shown by the pleadings to be frivolous and/or vexatious.

 

97. The jurisdiction conferred by Order 19, rule 28 of the Rules of the Superior Courts

Order 19, rule 28 of the Rules of the Superior Courts provides as follows:

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

It is clear from the decision of the Supreme Court in Aer Rianta v. Ryanair [2004] 1 IR 506 that the jurisdiction conferred by Order 29, rule 28 is a jurisdiction to strike out the whole (as distinct from part only) of a claim. It is also clear from the decision in that case that, although, “[a] court will exercise caution in utilising this jurisdiction”, “if a court is convinced that a claim will fail [the] pleadings will be struck out” at 509 (per Denham J.)

 

98. In Adams v. Minister for Justice, [2001] 2 ILRM 452, the Supreme Court had to consider whether the applicants’ claims disclosed any reasonable cause of action against the respondents, were frivolous or vexatious or doomed to fail. In concluding that the claims were frivolous, vexatious and doomed to fail, Hardiman J. stated, inter alia, as follows:

“The Applicants’ proceedings are of the baldest kind, without any basis in law or fact, and, with the exception of Mr. Iordache’s case, without any attempt to rely on proved individual circumstances either in relation to attacking the decisions taken in respect of the individual applicants or on the broader aspects of their claim. In my view they are all frivolous, vexatious and doomed to fail: indeed they are scarcely recognisable as legal proceedings at all.”

As regards the appellant’s contention that the proceedings should not be struck out if they were capable of being saved by amendment, Hardiman J. stated as follows:

“In my view, nothing which could properly be described as amendment could save these proceedings. If, hypothetically, the applicants or any of them have any statable cause of action, it would require to be expressed in proceedings in which bear no resemblance whatever to those presently under consideration.”

 

99. In O’Siodhachain v. O’Mahony, (Unreported, Supreme Court, 7th December 2001), the Supreme Court upheld a decision of the High Court striking out a claim of deceit against the third named defendant who had acted as solicitor for the first and second named defendants in respect of a property transaction the subject of the proceedings. In delivering the ex tempore judgment of the court, Keane C.J. stated, inter alia, as follows:

“The statement of claim delivered in the proceedings and in which the third named defendant was joined as a defendant, claims in paragraph 4b an order for damages against the first, second and third named defendants for deceit. That is effectively a claim of fraud against the third named defendant and the court is satisfied having examined with care the statement of claim filed on behalf of the plaintiff that even if the facts there alleged were proved, it would not in any way substantiate so grave an allegation as an allegation of fraud against any person but particularly a solicitor and an officer of this court.

 

…

 

The court is satisfied that the learned High Court judge was perfectly correct in dismissing these proceedings. The court is so satisfied not only because they disclose no cause of action against the third named defendant but because they are also satisfied that in the inherent jurisdiction of the High Court it was proper to strike the proceedings out as being a clear abuse of the process of the court.”

 

100. In Fay v. Tegral Pipes Ltd., [2005] 2 IR 261 the Supreme Court allowed an appeal against a decision of the High Court refusing to dismiss the plaintiff’s claim on the grounds that it was bound to fail, disclosed no reasonable cause of action, was frivolous and vexatious and an abuse of the process of the court. In addressing the jurisdiction to strike out a plaintiff’s claim on the grounds that it is frivolous and vexatious, the court stated, inter alia, as follows:

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

 

101. In Kilcoyne v. Westport Textiles (Unreported, High Court, Finnegan P., 26th July 2006), Finnegan P. acceded to an application on behalf of the second named defendant to strike out the plaintiff’s claim pursuant to Order 19, rule 28. Finnegan P. explained his reasoning as follows:

“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 grounds 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 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 fefendant be struck out pursuant to Order 19 rule 28 of the Rules of the Superior Courts.”

 

102. Application of the legal principles

The defendants submitted that the statement of claim delivered herein discloses no reasonable cause of action and, further, that the action is shown by the pleadings to be frivolous and/or vexatious. In this context, they have highlighted the following matters and urge upon the court to following specific submissions:

(i) In paragraph 18 of the statement of claim, it is alleged, inter alia, that the defendants made representations and averments which, “are now known to be false and or were known to be false but were not corrected at the earliest opportunity, or at all, thereby seriously and fatally misleading this Honourable Court and the plaintiffs herein, whereby this Honourable Court was induced into error to make decisions it would not or might not have made had it not been kept out of the true facts.” The plaintiffs omit to state who allegedly knew the representations and averments were false, when they were allegedly known to be false, how they were allegedly false or when they ought to have been corrected. Moreover, the representations and averments were all true, as is apparent from the pleadings and affidavits in the Section 205 proceedings. There is demonstrably no basis for the assertion that any court hearing the Section 205 proceedings was misled or induced into error as the plaintiffs allege. All of the courts were aware of the true facts and accepted those facts.

 

(ii) In paragraph 19 of the statement of claim, it is alleged that it is a “fact” that, “at all material times, the first, third and fourth named defendants … were not in fact the owners or alternatively were not entitled either directly or indirectly to the entire or any beneficial interest in the said shares, as same had been sold, transferred, assigned or otherwise disposed of to third parties or otherwise dealt with in circumstances where the defendants were no longer the owners of the said shares or entitled to the beneficial interest therein directly or indirectly.” No basis is set out for this allegation and no particulars thereof have been provided. The owners allegedly entitled to the entire beneficial interest in Crindle are not identified. Nor does the statement of claim identify the person or persons to whom it is alleged the beneficial interest “had been sold, transferred, assigned or otherwise disposed of”. Despite the significance of the said allegations in the context of the case, the plaintiffs purport to make and despite the time which the plaintiffs have had to assemble the information necessary to plead and properly particularise that case, the plaintiffs are unable even to present a properly pleaded case, let alone prove the extraordinary allegations upon which it is based.

 

(iii) Throughout the statement of claim, the plaintiffs make a series of extremely serious allegations which are wholly unparticularised. For example, in paragraphs 27, 33 and 34, the plaintiffs make allegations of conspiracy on the part of the defendants which are entirely unsupported by detail or the necessary particulars. Similarly, in paragraph 31, the plaintiffs allege that, “false averments were made deliberately to pervert the course of justice”. Again, no particulars are provided. It is notable and, for the purposes of the present application, very significant that the plaintiffs’ claims are so utterly devoid of the particulars necessary to advance the case which they purport to make.

 

(iv) As in Adams v. Minister for Justice, the plaintiffs’ claims in these proceedings “are of the baldest kind, without any basis in law or fact”. Of course, it is not surprising that the plaintiffs’ pleadings are so fundamentally defective in so many respects and that the statement of claim does not disclose any reasonable cause of action: the plaintiffs do not have any reasonable cause of action and their allegations herein are demonstrably devoid of merit. The foregoing is exemplified by the wholly unparticularised nature of the plaintiffs’ multifarious allegations in relation to the ownership of Crindle, the fact that those allegations are fundamental to the plaintiffs’ entire case and the fact that those allegations are demonstrably false and without substance.

 

103. The defendants therefore say that in all the circumstances, the court should grant an order pursuant to O. 19, r. 28 of the Rules striking out or dismissing the plaintiffs’ claims.

 

104. The second major heading:

The proceedings have no reasonable prospects of success, are bound to fail and are an abuse of the process of the court.

 

 

 

105. Introduction

The second / alternative relief claimed on behalf of the defendants is an order pursuant to the inherent jurisdiction of the court dismissing or, alternatively, striking out the plaintiffs’ claims against the defendants on the grounds that the proceedings have no reasonable prospects of success, are bound to fail and are an abuse of the process of the court.

 

106. The inherent jurisdiction to strike out a claim which has no reasonable prospects of success, is bound to fail and/or is an abuse of the process of the court

General

It is well established that, apart from the jurisdiction to strike out a claim conferred by O. 19, r. 28 of the Rules, the court also has an inherent jurisdiction to strike out a claim where it has no reasonable prospects of success, is bound to fail and/or is an abuse of the process of the court. As the High Court (Costello J.) stated in Barry v. Buckley, [1981] I.R. 306:

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

 

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

 

107. The inherent jurisdiction of the court to strike out a claim in the circumstances under consideration has been reaffirmed and analysed by the courts on a number of occasions: see, e.g., Sun Fat Chan v. Osseous Limited [1992] 1 I.R.425; Flanagan v. Kelly¸(Unreported, High Court, O’Sullivan J., 26th February 1999); Supermac’s Ireland v. Katesan (Naas) Limited, [2000] 4 I.R.273; Jodifern v. Fitzgerald [2000] 3 IR 321 and Lynch v. O’Flynn.(Unreported, High Court, Kelly J., 18th June 2003).

 

108. It is well established that in considering an application to strike out proceedings on foot of its inherent jurisdiction, the court is not limited to considering the pleadings but can consider and take into account evidence on affidavit. See Costello J. in Barry v Buckley [1981] I.R. 306 at 308; see also Tassan Din v Banco Ambrosiano [1991] 1 I.R. 569 at 572 and Landers v An Garda Siochána Complaints Board [1997] 3 IR 347 at 360. The inherent jurisdiction of the court was considered in some detail by the Supreme Court in the case mentioned in the following two paragraphs.

 

109. In Jodifern v. Fitzgerald, Barron J. made the following observations in relation to this jurisdiction of the court:

“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.”(at p.333.)

 

110. In the same case, Murray J. explained that,

“[t]he object of [an order striking out proceedings to prevent an abuse of the process of the court from occurring] 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.” (at p.334).

Murray J. stated that, “a primary precondition to the exercise of this jurisdiction is that all the essential facts upon which the plaintiff’s claim is based must be unequivocally identified”. Murray J. then emphasised that, “where all the essential facts have been so identified, it must also be manifest that on the basis of those facts the plaintiff’s case has no foundation in law”. In addressing the question of legal issues raised by a plaintiff, Murray J. stated as follows:

“Certainly, a plaintiff faced with an application to have the proceedings stayed or dismissed in these circumstances is likely to raise, in one form or another, legal issues in response. In a case where there is in effect an abuse of the process of the court, it is quite possible that some at least will be clearly spurious or have no relevance to the facts of the case. Any other legal issues must be clearly discernible as being without merit and readily capable of being resolved in favour of the defendant. It is for the judge hearing the application, within the scope of his discretion, to determine whether any points of law raised can be so clearly and readily resolved in favour of the defendant that to allow the action to proceed would constitute an abuse of the process of the court. Legal issues that are sufficiently substantial as to fall outside that bracket should be left to the trial of that action in those proceedings.”

 

111. The defendants further submitted that judgments of the High Court and Supreme Court in various cases brought by Denis Riordan are particularly relevant to the application before the court in this case. In this regard, the court was referred to the judgments in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463; Riordan v. Hamilton, (Unreported, Supreme Court, 9th October, 2002) and Riordan v. Government of Ireland, (Unreported, High Court, 6th October, 2006).

 

112. In Riordan v. Ireland (No. 5) the High Court (Ó Caoimh J.) stated that “[i]n assessment of the question whether the proceedings are vexatious, the court is entitled to look at the whole history of the matter and it is not confined to a consideration as to whether the pleadings disclose a cause of action.” Ó Caoimh J. continued as follows:

“The court is entitled in the assessment of whether proceedings are vexatious to consider whether they have been brought without any reasonable ground. The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground.”

Ó Caoimh J. referred to the following matters which were held by Canadian courts (see Dykun v Odishaw (Unreported, Alberta Court of Queen’s Bench, Judicial District of Edmonton, 3rd August, 2000); and Re Lang Michener and Fabian (Ontario High Court) (1987) 37 D.L.R. (4th) 685 at 691.) to be matters which tended to show that a proceeding is vexatious:

SIZE=2 FACE=”Arial”>”(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

 

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

 

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

 

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

 

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions.”

These principles were reaffirmed by the High Court (Murphy J.) in McCabe v. Minister for Justice, (Unreported, High Court, 29th June 2006).

 

113. In addressing the plaintiff’s “intended action to have declared unconstitutional the operation of the Supreme Court in the proceedings previously taken by the intended plaintiff”, (a p.473/474) the court concluded as follows:-

“… I am satisfied that this proposed cause of action is vexatious as it is one seeking first of all to bring one or more actions to determine an issue which has already been determined by a court of competent jurisdiction. Secondly it is one which it is obvious cannot succeed and it is one from which no reasonable person could reasonably expect to obtain relief. Furthermore, I am satisfied that this proposed action if brought would be brought for an improper purpose, namely the harassment and oppression of the parties to the earlier proceedings and not for the purpose of the assertion of legitimate rights.”

 

114. In Riordan v. Hamilton, the plaintiff sought to challenge final judgments given by the Supreme Court in proceedings in which he was a party because he was dissatisfied with those judgments. In upholding the decision of the High Court dismissing the proceedings on the grounds that they constituted an abuse of the process of the court, the Supreme Court (per Murray J.) stated as follows:

“… the fundamental point here is that he seeks to challenge previous judgments of this court and obtain declarations that they are wrong. Of this, the plaintiff said at the hearing of the appeal, ‘that is the whole basis of my case plus I am claiming damages.’ He appears to have considered that by adding a claim for damages he was entitled to reopen those issues in these proceedings. Of course, that is patently wrong. The judgments and decisions of which he complains are final and conclusive as regards the issues in those proceedings pursuant to Article 34.4.6 of the Constitution. Those issues cannot now give rise to a claim for damages and, in any event, a claim for damages as an additional form of relief cannot affect the res judicata nature of those decisions.

 

The learned High Court judge firstly had regard to Order 19, rule 28 [… Having quoted Order 19, rule 28, the court continued as follows:]

 

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

 

In my view, the learned High Court judge was perfectly entitled to come to the conclusion which he did, namely, that these proceedings constitute an abuse of the process of the court and he was entitled to dismiss them on that basis.”

 

115. The Supreme Court also upheld the decision of the High Court to dismiss the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action and had no reasonable prospect of success. In this regard, Murray J. stated as follows:

“Exercising the inherent jurisdiction of the court, the learned High Court judge also struck out the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action and had no reasonable prospect of success. In respect of that conclusion he stated, ‘The position here is that these matters have already been litigated. There is no new matter and this is an effort to re-litigate the same matters and to effectively ask this court to review the decision of the Supreme Court or to ask another judge to embark on a hearing at a later stage. In my opinion, it is neither open nor would it be appropriate to do so in this case.’

 

He had before him the affidavit of Lawrence A. Farrell, Chief State Solicitor, filed on behalf of the defendants herein, to which there was no replying affidavit and had regard to the statement of claim of the plaintiff. The trial judge was perfectly entitled to make that finding on foot of that affidavit and the statement of claim. In those circumstances, he was correct in striking out the plaintiff’s claim on the grounds that it discloses no reasonable cause of action and has no reasonable prospect of success.”

 

116. The Supreme Court also upheld the order of the High Court restraining the plaintiff from issuing certain kinds of proceedings without leave of the court:

“As regards the order restraining the plaintiff from issuing certain kinds of proceedings without leave of the court, the learned High Court judge relied on the dictum of Costello J. in McSorley v. O’Mahony, (Unreported, High Court, 6th November 1996). It is an abuse of the process of the court to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff. While every citizen has a right of access to the courts, it is in the public interest and in the interest of the proper use of public resources in the administration of justice that in exceptional circumstances this right be regulated by the courts. In my view, in the circumstances of this case, the learned High Court judge exercised his discretion properly in deciding to make such an order and I do not consider that any of the arguments made by the plaintiff in this appeal disclose a basis for impugning the exercise of that discretion.”

 

117. In Riordan v. Government of Ireland, the High Court (Smyth J.) addressed the importance of the jurisdiction to strike out vexatious claims as follows:

“The right of access to the courts is to be protected, but it is not an absolute automatic right in all and every case and circumstance. In the context of this case the words of Henchy J in Cahill v Sutton [1980] I.R.269 at 286 have a particular relevance:

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

In vindicating the constitutional rights of any person, it is of importance that the rights of the community as a whole or identifiable persons or officers or offices in it are not disregarded (e.g. by being open to harassment, oppression or scandalous or vexatious litigation). The common good and the respect of society and of the community for a justice system is not served or ensured by a disproportionate concern for the rights of the individual at the almost inevitable expense of a disregard for the rights of society by an over indulgence of every or any complaint of an individual. The courts, in respecting the rights of all those who seek access to the court, must also have some self-respect. Otherwise, there is the real possibility, nay probability, that the justice system will be abused and/or manipulated for unworthy purposes.”

The doctrine of res judicata and the jurisdiction to set aside final Orders

 

118. The defendants say that the abuse of process involved in attempting to litigate matters which are res judicata merits particular emphasis in the context of the present application before the court.

 

119. As the Supreme Court stated in Dublin Corporation v. The Building and Allied Trade Union, [1996] 1 I.R. 468, “the doctrine of res judicata applicable to […] every final judgment or award of any competent court or tribunal, has the consequence that the parties are estopped between themselves from litigating the issues determined by the award again”. The court (per Keane J.) explained the rationale for this doctrine as follows:

“The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved – the anxiety, the delays, the costs, the public and painful nature of the process – there is, at least, the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.

That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the court been in possession of evidence not available at the hearing, is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.” (at p.481).

 

120. In Tassan Din v. Banco Ambrosiano S.P.A., the High Court (Murphy J.) observed that, “[o]bviously, it would be vexatious and an abuse of the process of the court to litigate any matter which was already concluded by a final and binding order of the court”. (at p. 574) In Riordan v. Ireland (No. 5), the High Court (Ó Caoimh J.) refused the plaintiff leave to commence proceedings on the grounds that, inter alia, “[the] proposed cause of action [was] vexatious as it [was] one seeking first of all to bring one or more actions to determine an issue which has already been determined by a court of competent jurisdiction.”

 

121. In Tassan Din, Murphy J. stated that “[a]s a preliminary step towards re-opening [litigation concluded by a final and binding order of the court], it would be imperative to set aside the previous order and the judgment of the court”. (ibid) As appears from the passages from the judgment of Keane J. in Dublin Corporation v. The Building and Allied Trade Union referred to above, in “exceptional cases” where a litigant can prove that a judgment/order was “procured by fraud” the judgment/ order may be set aside. The nature of this jurisdiction has been considered in a number of cases. In this context, the judgments in the following cases are instructive: Tassan Din v. Banco Ambrosiano S.P.A.; L.P. v. M.P., [2002] 1 IR 219; Lynch v. O’Flynn, (Unreported, High Court (Kelly J.), 18th June, 2003) and, in particular, Bula v. Crowley, (Unreported, High Court, 10th June, 2005).

 

122. In Tassan Din v. Banco Ambrosiano S.P.A., the plaintiff sought an order setting aside an order of the Supreme Court in earlier proceedings on the grounds of fraud. The defendants brought an application to dismiss the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action or, alternatively, it was frivolous and vexatious and an abuse of the process of the court. The High Court (Murphy J.) acceded to the defendants’ application. Having made the observations set out above, Murphy J. stated that the substantive issue on the defendants’ motion was whether Tassan Din had any reasonable prospect of impugning the order of the Supreme Court.

 

123. In addressing the defendants’ argument on the basis of Article 34 of the Constitution and the finality or conclusiveness of decisions of the Supreme Court provided for thereby, Murphy J. stated that that jurisdiction did not involve an exception to Article 34 of the Constitution since, “[a]n order obtained by fraud is a mere nullity”. Murphy J. noted that this was recognised by the Earl of Selborne in Boswell v. Coakes (1894) 6 R. 167 in the following terms:

“There are two classes of cases, perhaps, which ought to be distinguished for this purpose. One is that of which the celebrated case of the Duchess of Kingston is an example, in which by the collusion of the parties the process of the courts has been abused, and the whole proceedings may be described as it was described in language used in that case as fabula non judicium. This, at all events, is not a case of that kind. The present case falls within the second class, namely, where it is not sought to treat as a nullity what has passed, but to undo it judicially upon judicial ground, treating it as in itself, and until judicially rescinded, valid and final.”

 

124. Murphy J. also referred to the following passages from the speech of Lord Simon in the Ampthill Peerage Case [1977] A.C.547:

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

…

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

 

125. Murphy J. also referred to the following passages from the speech of Lord Simon in which he addressed the issue of impeaching a judgment on the ground of fraud:

“To impeach a judgment on the ground of fraud, it must be proved that the court was deceived into giving the impugned judgment by means of a false case known to be false, or not believed to be true, or made recklessly without any knowledge on the subject. No doubt, suppression of the truth may sometimes amount to suggestion of the false: The Alfred Nobel [1918] P 293 But, short of this, lack of frankness or an ulterior or oblique or indirect motive is insufficient.

 

Moreover Janesco v. Beard [1930] A.C. 298 a decision of your Lordships’ House, confirmed that, to impugn a judgment on the ground of fraud, the fraud must be alleged with particularity and proved distinctly. A person is not permitted merely to allege fraud in the hope of discovering it as the case develops.

 

You cannot go to your adversary and say, ‘you obtained the judgment by fraud, and I will have a rehearing of the whole case until that fraud is established’.

…

The impugner of a judgment as obtained by fraud must adduce evidence of facts discovered since the judgment which show a reasonable probability (which I take to mean a prima facie case) of such fraud as would invalidate the judgment, before he can call on the person whose judgment he seeks to nullify to make any sort of disclosure.”

 

126. Murphy J. also referred to the following passages from the speech of Lord Wilberforce in which he considered the nature of the fraud or collusion which would justify setting aside a judgment of the court:

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

 

127. Against this background, Murphy J. stated that, “nothing short of fraud pleaded with particularity (and ultimately established on the balance of probabilities) would be sufficient grounds in the present case for upsetting the decision [of the Supreme Court at issue].”(ibid).

 

128. In addressing the application in Tassan Din, Murphy J. stated, “even at this preliminary stage it would be necessary for the plaintiffs in the existing proceedings to take up the challenge of demonstrating how documents, which on their face would not be admissible in evidence, could have altered the outcome of the earlier proceedings”. Having referred to a similar issue that arose in St. Albans Investment Co. v. London Insurance and Provincial Insurance Co. Ltd. (Unreported, High Court, Murphy J., 27 June, 1990), Murphy J. continued as follows:

“[In St. Albans Investment Co. v. London Insurance and Provincial Insurance Co. Ltd.] I examined the documents which it was alleged had been fraudulently omitted from the affidavit of discovery made on behalf of the defendant in that case, and concluded that there was no evidence to support the proposition that the omitted documents would have any impact on the decision which it was sought to impeach. I am equally clear that in the present case, not only the particular document referred to in the statement of claim but also the other documents exhibited in the grounding affidavits already referred to, would not have advanced the case made by Tassan Din. I do not accept the far reaching proposition that a document which was not discovered might, for some unexplained reason, have put the other party on a train of inquiry or investigation which might have resulted in the production of vital evidence, and that such a possibility would be a ground for upsetting the order of the Supreme Court. If the omitted documents had that potential, I have no doubt that such inquiries would have been made long since, with the results thereof made available to the court to demonstrate, as I believe would be necessary, that the order of the Supreme Court was obtained as a result of the alleged fraud.”

Accordingly, Murphy J. dismissed the plaintiff’s claim.

 

129. In L.P. v. M.P., the Supreme Court (per Murray J.) reviewed the jurisprudence on the jurisdiction to set aside or amend a final order as follows:

“The jurisdiction of a court at common law to set aside or amend a final order, was considered by this court in Belville Holdings Ltd. v The Revenue Commissioners [1994] I.L.R.M. 29. The substance and effect of the judgment of Finlay CJ in that case was conveniently and succinctly summarised by Hamilton CJ in In re Greendale Developments Ltd. (No 3) [2000] 2 I.R. 514 at 527. as follows:-

‘… it set out in detail the common law principle concerning [this] question holding that where a final order has been made and perfected it can only be interfered with:-

(1) in special or unusual circumstances, or

 

(2) where there has been an accidental slip in the judgment as drawn up, or

 

(3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.’

Later in his judgment at p. 529, Hamilton CJ went on to state:-

“Public policy requires a definite and decisive end to litigation. In spite of the importance of such a principle, it was accepted at common law that an action may be brought to set aside a judgment or order made by the Court which had been obtained by fraud.”

He then cited Barrington J. in Waite v House of Spring Gardens Ltd (Unreported, High Court, 6th June 1985) who stated, inter alia, “There is no doubt that an action may be brought to set aside a judgment obtained by fraud and that no leave is required of the court prior to the institution of such proceedings”. Commenting on the judgment of Barrington J. in that case, Hamilton CJ at p. 530 observed:-

“There is no suggestion in the above passage from the judgment of Barrington J. or the extracts from the judgments therein referred to that the judgment so obtained could be set aside other than in separate proceedings. They are not authority for the proposition that the Court can set aside its own decision.”

Accordingly, at common law, the grounds upon which a final order may be impugned is limited in the first instance to correcting, so to speak, the final judgment to ensure that it accurately reflected the adjudication and intention of the court which made it and, in the exercise of a wider and more fundamental jurisdiction to setting aside an order on the grounds that it had been obtained by fraud. Even the setting aside of a final order on the grounds of fraud is not a true exception to the principle of finality, as Murphy J. stated in Tassan Din v. Banco Ambrosiano S.P.A.. With reference to Article 34.4.6 of the Constitution which provides that “the decision of the Supreme Court shall in all cases be final and conclusive”, Murphy J. stated at p. 580 “the acceptance by Barrington J. in Waite v. House of Spring Gardens Ltd. 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.” (at pp 227-228).

 

130. In Lynch v. O’Flynn, the High Court (Kelly J.) observed that, “[i]t is in the public interest and in the interest of parties to litigation that once a final and binding determination of issues has been made, such issues should not be re-opened, save in most extraordinary circumstances such as fraud affecting such proceedings.”

 

131. The defendants submit that the judgment of the High Court (Murphy J.) in Bula v. Crowley merits particular emphasis, not least because the four plaintiffs in that case are also plaintiffs in the proceedings herein. The facts of that case are of particular relevance to the present application. The defendants point out that Mr. Wymes and others attempted in that case precisely what they have attempted to do in the present case which, they submit, represents an abuse of the process of the court. In that case, the fifth, sixth and seventh named defendants (the bank defendants) sought, inter alia: (a) an order dismissing the plaintiffs’ claim as constituting an abuse of the process of the court; and, (b) further or alternatively, and order pursuant to Order 19, rule 28 of the Rules of the Superior Courts, dismissing the proceedings on the grounds that they were frivolous and vexatious and/or disclosed no reasonable cause of action against the fifth, sixth and seventh named defendants. Murphy J. granted an order dismissing the proceedings as constituting an abuse of the process of the court. Significantly, Murphy J. also granted an order restraining the plaintiffs and each of them from instituting any further proceedings against the defendants in that case without the prior leave of the court.

 

132. The reliefs claimed by the plaintiffs in Bula v. Crowley were as follows:

 

“As against all the defendants:

(1) Damages for negligence

 

(2) Damages for unlawful interference with the economic interests of the plaintiffs and each of them.

As against the receiver, the first named defendant:

(3) Damages for breach of duty

 

(4) Damages for misrepresentation and/or negligent misstatements

 

(5) Damages for breach of contract.

 

(6) A declaration that the receiver, the first defendant, has purported to sell the property known as Bula Mine as Nevinstown, Navan, County Meath, in breach of duty.

 

(7) A declaration that the first defendant was and is prohibited from acting as receiver and manager.

 

(8) An injunction restraining the first named defendant from dealing with the proceeds of the purported sale pending the determination of these proceedings.

As against KPMG, the second defendant:

(9) Damages for breach of contract.

 

(10) Damages for misrepresentation and/or negligent misstatements.

As against the receiver and Tara Mines Limited:

(11) An order setting aside the contract dated 9th May, 2001, made between the receiver and Tara Mines Limited.

 

(12) An order setting aside any conveyance between the receiver and Tara Mines Limited pursuant to any purported completion of the contract dated 9th May, 2001.

 

(13) An order setting aside any conveyance pursuant to any purported completion of the contract.

As against Tara Mines:

(14) A declaration that Tara Mines has no good title to the property.

 

(15) An injunction restraining Tara Mines from exercising and/or asserting any rights as purchaser under the purported conveyance pending the determination of these proceedings.

 

(16) An injunction directing that Tara Mines refrain from entering onto, into or under, or extracting minerals from the property.

As against Outokumpu Oy, Northern Bank Finance Corporation Limited (NBFC) and Ulster Investment Bank Limited (UIB):

(17) Damages for breach of duty and negligence.

As against all defendants excepting Outokumpu Oy:

(18) Damages for unlawful interference with and obstruction of the course of justice.

As against Navan Mining plc. (Navan):

(19) A declaration that Navan had an interest in the security, pursuant to which the receiver purported to sell the property to Tara Mines Limited.

 

(20) A declaration that Navan was an intended beneficiary pursuant to the contract between the receiver and Tara, dated 9th May, 2001.

 

(21) An order directing that all necessary accounts and enquiries be taken.”