Previous Litigation

Cases

 

Pauline Lawless Plaintiff v. Bus Eireann – Irish Bus and Dominic Conlon

 

Finlay C.J.
8th February 1994

I agree with the judgment of O’Flaherty J.

O’Flaherty J.
The plaintiff is the widow of Harry Lawless and she brings this action against the defendants for the death of her husband on her own behalf and on behalf of the statutory dependants of the deceased, who number eight, and include two infant children.
In the statement of claim delivered on her behalf on the 1st December, 1988, it is pleaded that as a result of a collision between the defendants’ motor bus and a motor van then being driven by the deceased on the 19th December, 1987, the deceased sustained injuries which caused his death and that his death was caused as a result of the negligence, breach of duty and breach of statutory duty of the defendants, their servants or agents in the driving, management, care and control of the motor bus.
A passenger in the motor bus, Edward Brownell, brought an action against Bus Eireann and in which he also joined one Paul Brady as defendant for injuries that he sustained in the collision. Mr. Brady was simply a nominee of the deceased’s insurance company since representation had not been raised to his estate at the time that Mr. Brownell was about to bring his proceedings.
The matter was decided in the Circuit Court by His Honour Judge Smith on the 18th December, 1990, when he held both sides had been negligent and apportioned fault as to 70% against the deceased and 30% against the present defendants. On appeal it was decided by the High Court (Barr J.) on the 5th March, 1991, that the appeal of Bus Eireann should be allowed and that judgment should be entered solely against Mr. Brady.
Thereafter, on the 2nd December, 1991, the defendants delivered an amended defence in which the following plea was contained:
“The plaintiff is estopped from prosecuting and maintaining the within proceedings upon the grounds that same is res judicata the issue of liability having been determined before Mr. Justice Barr in the case of Edward Brownell v. Bus Eireann and Paul Brady (the defendant ad litem for the said Harry Lawless deceased).”
This matter was set down by way of preliminary issue of law and was decided by the High Court (Johnson J.) on the 25th March, 1992, wherein he held that the plea of res judicata by the defendants was not sustained.
In effect, he followed his reasoning, and the authorities that he relied upon, in his previous decision in Reamsbottom v. Raftery [1991] 1 I.R. 531.
The facts in that case were straightforward. A car owned by Mr. Reamsbottom and driven by his wife collided with a car owned by Mr. Raftery. Mr. Raftery claimed damages against the car owner and recovered in full. Mrs. Reamsbottom was not a party to the action, was not represented at it and did not give evidence. The judge held that she was not estopped from bringing her, separate, action.
The facts in that case should be contrasted with the facts in Donohoe v. Browne [1986] I.R. 90, a decision of the High Court (Gannon J.). In the latter case Mrs. Browne sued Mr. Donohoe for damage to her car on an occasion when it was being driven by a Mr. McCabe. She succeeded in full. Mr. Donohoe then brought proceedings against Mrs. Browne joining Mr. McCabe as a defendant. Gannon J. had no difficulty in holding that there was complete identity of interest between Mrs. Browne and her driver qua her liability as owner of the motor car involved in the collision with Mr. Donohoe’s car.
Johnson J. in the Reamsbottom case reviewed all the authorities in detail including Donohoe v. Browne [1986] I.R. 90 and Shaw v. Sloan [1982] N.I. 393, a decision of the Court of Appeal in Northern Ireland as well as the judgment of Megarry V.-C. in Gleeson v. J. Wippell & Co. Ltd. [1977] 1 W.L.R. 510.
The defendants appeal and counsel on their behalf has strongly urged upon us that the critical question as to who was negligent had been resolved in the High Court by the decision of Barr J. Further, it was submitted that the learned trial judge erred in failing to find that the interest and capacity of the plaintiff was the same as that of Mr. Paul Brady in the claim brought by Mr. Brownell.
I would follow the learned High Court judge’s reasoning in all respects and I, too, would adopt the authorities relied on by him in Reamsbottom v. Raftery [1991] 1 I.R. 531. In Shaw v. Sloan [1982] N.I. 393, Gibson L.J. succinctly set forth what was involved in this form of plea of estoppel when he said, at p. 398:
“It would seem that before estoppel of an issue can arise there must have been a final determination of the same issue in previous proceedings by a court of competent jurisdiction and the parties bound by this earlier decision must have been either the same parties as are sought in the later proceedings to be estopped or their privies.”
As I said, counsel for the defendants argued strenuously before the Court that the sole issue for decision was: who was negligent. That, he submitted, has been resolved by Barr J. Accepting that negligence is the sole issue, nonetheless, that leaves unresolved the problem that neither Mrs. Lawless, her children nor the other dependants were in any sense represented at the hearing either in the Circuit Court or the High Court in the Brownell case. I have no doubt that those who represented the insurance company’s interests at both hearings did their best. But that is not the point. The point is the entitlement of a person to have an opportunity to present his or her case in court; to decide the tempo of the case; decide what witnesses should be called or not called, and so forth. It is impossible to conclude that there was any privity of interest in this case between Mr. Brady, as nominee of the insurance company, and the plaintiff and the dependants of the deceased. The degree of distress that the plaintiff would suffer if she were to discover that she was to be shut out from any part in the decision-making process involving her and the deceased’s dependants’ entitlement to compensation can be easily envisaged. To put it at its most critical: for the insurance company the case was surely just another case to be disposed of – naturally on the best basis possible; but for the widow and her children and other dependants the case is likely to be one of the most important things to be decided in their lifetimes. In a word, their interests are not identical.
I would dismiss the appeal. In view of the length of time since the fatality, it would seem fitting that, on application being made in the High Court, this case should now have the same priority, at least, as it would have had if this preliminary issue had not been set down leading to a hearing in the High Court as well as an appeal to this Court.

Denham J.
I agree with the judgment of O’Flaherty J.

 

County Council of the County of Clare v Gerard Mahon and Raymond Quinn

1990 No. 16083 P

High Court

17 October 1995

[1996] 1 I.L.R.M. 521
(Carroll J)

CARROLL J

delivered her judgment on 17 October 1995 saying: This matter comes before me by way of agreed special case on a preliminary question of law arising from the defendants’ plea of estoppel by res judicata. The plaintiffs have sued the defendants who reside in County Clare and are connected to the Ballyvaughan water supply, claiming a series of declarations. The two defendants had refused to pay their water charges from 1983 and 1987 respectively. They claim to be entitled to the benefit of an indenture of lease dated 1 February 1877 (referred to as the 1877 lease) and made between Colonel Charles William White, the lessor, of the one part and the guardians of the Ballyvaughan Union in the County of Clare, the lessees, of the other part wherein certain water works were leased to the lessees and their successors for 999 years from the date thereof.

The declarations claimed are:

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

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

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

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

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

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

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

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

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

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

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

The 1877 lease demised:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At p. 342 he said:

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

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

At p. 343 he said:

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

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

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

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

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

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

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

 

Rosemary McCauley v Noel McDermot and Patrick McCauley
1994 No. 1

Supreme Court

24 April 1997

[1997] 2 I.L.R.M. 486

KEANE J

(Hamilton CJ and Barrington J concurring) delivered his judgment on 24 April 1997 saying: On 20 June 1992, a collision occurred between a motor car and a tractor at Ballyconnell, County Cavan. The minor plaintiff (hereafter ‘the passenger’) was a passenger in the motor car which was owned by her father and next friend (hereafter ‘the car owner’) and driven by the third party (hereafter ‘the motorist’). The tractor was owned by the defendant (hereafter ‘the tractor owner’) and driven by Joseph McLoughlin (hereafter ‘the tractor driver’). As a result of the impact between the motor car and the tractor, there was a further collision between the tractor and another car which was parked on the road at the time and was owned by Deirdre Forde (hereafter ‘Ms Forde’).

The car owner instituted proceedings in the District Court against the tractor owner claiming damages in respect of the damage caused to his motor car. The district judge found that both the motorist and the tractor driver were negligent on the occasion in question and apportioned liability equally. That decision was the subject of an appeal to the Circuit Court which was heard and determined on 28 October 1992 by his Honour Judge Sheehy. The learned Circuit Court judge also found that the collision between the motor car and the tractor was due to the negligence of the tractor driver but found that there was no contributory negligence on the part of the motorist.

Ms Forde then instituted proceedings in respect of the damage to her parked motorcar against the car owner, the motorist, the tractor owner and the tractor driver. Following the determination of the appeal in the earlier proceedings in the Circuit Court, Ms Forde served notice of discontinuance of the proceedings as against the motorist and the car owner. Ms Forde’s claim against the tractor owner and the tractor driver was then the subject of a settlement between her and those parties. The solicitors for the tractor owner and the tractor driver wrote as follows to the solicitor for the car owner and the motorist on 6 November 1992:

We refer to our letter to you dated 28 September last and note that we never subsequently heard from you in response other than your letter of 1st ult. which did not really deal with the issue.

In the interim, events have overtaken this correspondence. The plaintiff has served notice of discontinuance against your client and we have agreed to settle the plaintiff’s claim. The settlement provides for an indemnity by us to the plaintiff in respect of any costs properly arising to be paid to your client on foot of the aforementioned proceedings. Will you please furnish to us particulars of such costs so that we may seek to agree same. In this respect we will expect you to bear in mind that the real negligence issue was dealt with and is being paid for by our clients in the proceedings brought forward by John McCauley and that in reality the issues arising in the Deirdre Forde claim did not to any significant extent arise to be dealt with on behalf of your clients.

If these costs can be agreed it will save having to argue the issue in court.

The present proceedings were instituted on behalf of the passenger, claiming damages in respect of injuries allegedly sustained by her in the collision with the tractor, against the tractor owner. We were informed during the hearing of the present appeal that proceedings have also been instituted in the High Court by the motorist against the tractor owner, claiming damages in respect of personal injuries alleged to have been sustained by him as a result of the collision with the tractor. It would appear that, while the pleadings in these last mentioned proceedings have been closed and the action set down for hearing, they have been adjourned from time to time and remain to be heard.

On 24 May 1993, the tractor owner (the defendant in these proceedings) was granted liberty by the High Court to issue and serve a third party notice against the motorist claiming contribution or an indemnity. On 20 October 1993, a notice of motion was served on behalf of the motorist applying for an order pursuant to O. 16, r.7 of the Rules of the Superior Courts 1986 striking out the third party notice on the grounds that the issues arising between the tractor owner and the motorist which were the subject of the third party proceedings were res judicata or, alternatively, that the third party proceedings constituted an abuse of the process of the court.

In an ex tempore judgment delivered on 3 December 1993, the High Court (Murphy J) dismissed the application of the motorist. From that judgment and order, the motorist now appeals to this Court.

On behalf of the motorist, Mr John Finlay SC submitted that the tractor owner was estopped from litigating in the third party proceedings the precise issue which had been determined against him by the Circuit Court. This was not affected by the fact that the third party proceedings had been initiated against the motorist only: by virtue of s. 118 of the Road Traffic Act 1961, the car owner was vicariously liable for the negligence (if any) of the motorist and hence there was a privity of interest between the car owner and the motorist which made the application of the principle of estoppel per rem judicatam appropriate. He cited in support of these propositions the decisions of the High Court in Donohoe v. Browne [1986] IR 90 and Reamsbottom v. Raftery [1991] 1 IR 531, of the Northern Ireland Court of Appeal in Shaw v. Sloan [1982] NI 393 and of this Court in Lawless v. Bus Éireann [1994] 1 IR 474. He also cited an unreported judgment which I gave as a High Court judge in a case of McGinn v. McShane High Court, 18 May 1995.

Mr Finlay submitted that if, contrary to that submission, the car driver and the car owner should not be regarded as being in privity so as to attract the issue estoppel doctrine, the proceedings should nevertheless be struck out as an abuse of the process of the court. He said that, had the third party proceedings been issued against the car owner, they would inevitably have been dismissed since issue estoppel would clearly apply. The sole reason for instituting proceedings against the motorist was to avoid that consequence and to relitigate an issue which had already been determined by a court of final jurisdiction against the tractor owner, a proceeding which should not, he said, be countenanced by the court. He cited in support of this submission the decisions of the English Court of Appeal in Stephenson v. Garnett [1898] 1 QB 677 and of the House of Lords in Reichel v. Magrath (1889) 14 App Cas 665.

On behalf of the tractor owner, Mr Kidney SC submitted that it was quite clear from the decisions in Shaw v. Sloan and McGinn v. McShane that the motorist was not the privy of the car owner and, accordingly, there was no ground for invoking issue estoppel, since the issue in question had never been litigated between these parties, i.e. the motorist and the tractor owner. That could not be described as an abuse of the process of the court: the issue of the tractor driver’s negligence had been raised by the passenger in the present proceedings and the motorist in the pending High Court proceedings and there was no logical reason why the tractor owner alone should be precluded by an unwarranted invocation of issue estoppel from litigating the issue of liability in the third party proceedings.

The issues as to liability which had to be determined by the Circuit Court in the earlier proceedings were:

(1) Was the damage to the motor car caused by the negligent driving of the tractor driver?

(2) If so, was the damage also caused or contributed to by the negligence of the motorist?

(3) In the event of the court finding that both the motorist and the tractor driver were negligent, in what degrees should their liability be apportioned?

In the proceedings instituted by the passenger, the only issue as to liability will be as to whether her alleged injuries were caused by the negligence of the tractor driver. In the event of her succeeding in that issue, the only issues that will arise in the third party proceedings will be:

(1) Were the injuries allegedly sustained by the passenger contributed to by the negligence of the motorist?

(2) If so, in what degrees should liability be apportioned as between the motorist and the tractor driver?

It is clear that in arriving at its determination, the Circuit Court was concerned with whether the tractor driver and, vicariously, the tractor owner were in breach of their duty of care to other persons, including the car owner and, similarly, whether the motorist, and vicariously the car owner, were in breach of their duty of care to the tractor owner. In the third party proceedings, the High Court will be concerned with whether the motorist was in breach of his duty of care to the tractor owner. The complication, accordingly, does not arise in this case, as it did in Gilroy v. McLoughlin [1988] IR 44, of an issue as to contributory negligence not having arisen in earlier proceedings but arising in subsequent proceedings.

While the doctrine of what has come to be called ‘issue estoppel’ has been the subject of explanation and analysis in many modern decisions, its essential features were helpfully summarised as follows by Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd [1967] 1 AC 853 at p. 935A:

The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Assuming that the passenger in the present case succeeds in establishing that her alleged injuries were caused by the negligent driving of the tractor driver, the two questions that will have to be determined in the third party proceedings will be precisely the same as the second and third questions determined in the Circuit Court proceedings, i.e. as to whether the injuries were contributed to by the negligent driving of the motorist and, if so, to what extent. The first requirement of issue estoppel is therefore met. So also is the second requirement: the determination of the Circuit Court was a final decision by a court of competent jurisdiction.

There remains the requirement that the parties to that determination were the same persons as the parties to the proceedings now sought to be stayed or their privies. The parties to the third party proceedings are the tractor owner and the motorist. The motorist was not, however, a party to the Circuit Court proceedings. Hence, unless the motorist can be regarded as in law the privy of the car owner, the doctrine of issue estoppel, as defined in the passage cited from Lord Guest’s speech and similarly explained in many other decisions, will not apply.

In Shaw v. Sloan, in a passage cited with approval by this Court recently in Belton v. Carlow County Council Supreme Court [1997] 2 ILRM 405 Lord Lowry LCJ, in considering issue estoppel, said (at p. 396) that:

a party is the privy of another by blood, title or interest when he stands in his shoes and claims through or under him.

S. 118 of the Road Traffic Act 1961 provides that:

Where a person (in this section referred to as the user) uses a mechanically propelled vehicle with the consent of the owner of the vehicle, the user shall, for the purposes of determining the liability or non-liability of the owner for injury caused by the negligent use of the vehicle by the user, and for the purposes of determining the liability or non-liability of any other person for injury to the vehicle or persons or property therein caused by negligence occurring while the vehicle is being used by the user, be deemed to use the vehicle as the servant of the owner, but only in so far as the user acts in accordance with the terms of such consent.

As a result of this provision, the owner and the driver of a car which is being driven with the consent of the owner are concurrent wrongdoers for the purpose of the Civil Liability Act 1961 in respect of any injury caused by the negligent driving of the car. It does not follow, however, that there is an identity of interest as a result of which a judgment given in proceedings against the owner is binding in proceedings against the driver or vice versa. That view of the law is borne out by the authorities.

It was the unanimous opinion of the High Court of Australia in Ramsay v. Pigram (1967) 118 CLR 271 where the court was considering the corresponding provisions of the Australian road traffic legislation. In Australia, as in Ireland, the position at common law had been that judgment against one joint tortfeasor was a bar to recovering judgment against another joint tortfeasor. Similarly, the release of one of several joint tortfeasors operated to release them all. In Ireland, as in Australia, the law was altered by the Civil Liability Act 1961 so as to provide (in s. 18) that an action against one wrongdoer will not be a bar against other concurrent wrongdoers, subject to the rule that the plaintiff cannot recover more damages than he has suffered. Again, s. 17 provides that the release of one wrongdoer will only discharge the other wrongdoers if such a release indicates an intention that the other wrongdoers are to be discharged. It was said in Ramsay v. Pigram that, whatever the position might have been at common law, these statutory provisions were inconsistent with treating the owner and driver as privies for the purposes of issue estoppel; see in particular the judgments of Taylor and Windeyer JJ. It was also the unanimous view of the Court of Appeal (Lowry LCJ, Gibson and O’Donnell LJJ) in Shaw v. Sloan.

In that case, the pillion passenger on a motorcycle sued the motorcyclist and the owner and driver of a car with which it was in collision. In earlier proceedings, the owner of the motorcar had sued the motorcyclist in respect of the damage to his car and the motorcyclist had been found entirely responsible for the accident. The Court of Appeal was unanimously of the view (upholding Hutton J as he then was) that, since the driver of the motor car had not been a party to the earlier proceeding and there was no privity between him and owner, the parties were not bound by the determination of liability in the earlier proceedings.

That case may be contrasted with the decision of Gannon J in Donohoe v. Browne. In that case, a motorcyclist sued the owner and driver of a motor car in respect of injuries he suffered as a result of a collision between the motorcycle and the car. In earlier proceedings, the owner of the car had sued the motorcyclist for the damage caused to her car in the collision. In the District Court, liability was apportioned equally between the parties, but that finding was varied on appeal by the Circuit Court, the motorcyclist being found to be entirely responsible. Gannon J, having reviewed a number of authorities on issue estoppel, concluded that, as between the motorcyclist and the car owner, the determination of each of the relevant issues as to liability in the Circuit Court was binding and conclusive and that, accordingly, the car owner was entitled to rely on the doctrine of res judicata.

Donohoe v. Browne was considered by Johnson J in Reamsbottom v. Raftery [1991] 1 IR 531. In that case, there had been a collision between two motor cars, one of which was driven by the plaintiff but owned by her husband. The defendant was the owner and driver of the other car. He had previously brought an action in the Circuit Court in relation to the collision naming the plaintiff’s husband as the defendant. The husband entered a defence and counterclaim but was found fully liable. The plaintiff was not a party to the Circuit Court proceedings and did not give evidence because of the injuries which she had suffered in the accident. The Circuit Court judgment had not been appealed. Johnson J distinguished Donohoe v. Browne on the ground that, in the case before him, the plaintiff had not been a party to the earlier proceedings. He also held, applying Shaw v. Sloan, that there was no privity between the plaintiff as driver and her husband as owner of the car. He said (at pp. 534–535):

… Were I to hold that the facts in this case were identical to the facts in Donohoe v. Browne a situation could arise whereby the plaintiff could be prohibited from bringing her case to court because of the result of an action to which she was not a party and over which she had no control and in which she might not have offered evidence. Quite clearly an injustice could be done if the plaintiff had (a) wished to give evidence or (b) was dissatisfied with the manner in which the Circuit Court case was conducted or wanted to call evidence which was not called before.

A similar approach was adopted in this Court in Lawless v. Bus Éireann. In that case, the plaintiff was the widow of the driver of a motor van who was killed in a collision with a bus owned by the defendants. There had been an earlier action in the Circuit Court brought by a passenger in the bus against Bus Éireann and in which, since no representation had been raised to the estate of the deceased van driver, a nominee of his insurance company had been joined as a defendant. In the Circuit Court, both the bus driver and the van driver were held to have been negligent, but on appeal it was decided by the High Court that the van driver alone had been responsible.

It was claimed on behalf of Bus Éireann that res judicata applied and that the plaintiff was bound by the determination of the High Court in the earlier proceedings. That claim was rejected by Johnson J who applied his earlier decision in Reamsbottom v. Raftery, and he was unanimously upheld on appeal by this Court (Finlay CJ, O’Flaherty and Denham JJ). O’Flaherty J said (at pp. 478–479:

It is impossible to conclude that there was any privity of interest in this case between Mr Brady, as nominee of the insurance company, and the plaintiff and the dependants of the deceased. The degree of distress that the plaintiff would suffer if she were to discover that she was to be shut out from any part in the decision making process involving her and the deceased’s dependants’ entitlement to compensation can be easily envisaged. To put it at its most critical: for the insurance company the case was surely just another case to be disposed of — naturally on the best basis possible, but for the widow and her children and other dependants the case is likely to be one of the most important things to be decided in their lifetimes. In a word, their interests are not identical.

In the present case, a factor which weighed heavily with Johnson J in Reamsbottom and in Lawless v. Bus Éireann and also with this Court in the latter case is not present: the tractor owner was the defendant in the District Court and Circuit Court proceedings and could make any case he wished. Nevertheless, for the reasons already given, the motorist cannot be regarded as in law the privy of the car owner and one of the essential ingredients of issue estoppel is therefore not present.

It would also appear that what has sometimes been seen as another essential requirement of estoppel per rem judicatam is also missing, i.e. mutuality. In Petrie v. Nuttall (1856) 11 Ex 569, Alderson B said (at pp. 575–576):

It is essential to an estoppel that it be mutual, so that the same parties and privies may both be bound and take advantage of it ….

In the present case, if the learned Circuit Court judge had decided the issue against the car owner and in favour of the tractor owner, the motorist would not have been estopped and, accordingly, there is no mutuality.

The fact remains that the tractor owner in the third party proceedings is seeking to relitigate an issue which was conclusively and finally determined against him in the Circuit Court proceedings, the very mischief which the doctrine of issue estoppel was intended to prevent. That this could be the consequence of the invocation of the doctrine in its traditional English form was pointed out by Jeremy Bentham in his Rationale of Judicial Evidence where he said:

There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a formal proceeding to which he was not a party; but there is no reason whatever for saying he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A. against B. should not bar the claim of a third party C.; but that it should not be evidence in favour of C. against B., seems the very height of absurdity.

A similar view has led the courts in the United States to take what might be described as a more robust view of issue estoppel, as a result of which a litigant will be estopped from litigating an issue which has already been decided against him. Thus, in Bruszewski v. United States (1950) 181 F 2d 419, where a longshoreman lost a negligence action against a steamship company servicing a docked ship and then sought to sue the United States, as the owners of the vessel, a plea of res judicata was upheld by the Court of Appeals (3rd Circuit). Delivering the opinion of the majority, Judge Hastie said:

The finding of no negligence … was made after full opportunity to Bruszewski on his own election to prove the very matter which he now urges a second time. Thus, no unfairness results here from estoppel which is not mutual. In reality the argument of the appellant is merely that the application of res judicata in this case makes the law asymmetrical. But the achievement of substantial justice rather than symmetry is the measure of the fairness of the rules of res judicata.

It is conceded on behalf of the tractor owner in the present case that the only reason for not joining the car owner in the third party proceedings is that the tractor owner would then be met with an unanswerable plea of res judicata. That plea would be upheld by the court, because to do otherwise would be to permit the same issue to be litigated again at the instance of an unsuccessful party. To allow that party to bring about the same result by the stratagem of suing the motorist rather than the car owner would be to ignore the maxim interest rei publicae ut sit finis litium and facilitate an abuse of process. As Gannon J pointed out in Donohoe v. Browne (at p. 99):

Res judicata is a matter of pleading to prevent as a matter of justice an abuse of the process of the administration of justice. Of its nature it can be raised properly only as against a party by whom or against whom a judgment has been obtained. That is to say the injustice to be avoided is the apparent disclaimer of a binding court order by the party bound by it.

There is another line of authority relied on by Mr Finlay in the present case, which demonstrates that the courts have power to put an end to such attempts by unsuccessful parties to escape from judgments binding on them, without doing violence to the established principles of issue estoppel. The inherent jurisdiction of the courts to stay proceedings which are an abuse of the process of the court is undoubted, although it is a jurisdiction to be exercised with great caution at an early stage of the proceedings. That it can be invoked in a case such as the present was made clear by the decision of the English Court of Appeal in Stephenson v. Garnett where all three members of the court were satisfied that there was a difficulty in treating the matter as res judicata, but A.L. Smith LJ said (at pp. 680–681):

The court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous or vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent court.

Similarly in Reichel v. Magrath, Lord Halsbury LC said (at p. 668):

I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

It should be noted that in Donohoe v. Browne, the question of privity of interest was not central to the resolution of the issue by Gannon J: the motorcyclist was effectively seeking to reopen an issue already determined between him and the car owner in the Circuit Court and the fact that the driver was a party in the Circuit Court but not in the High Court was not material. The result in Shaw v. Sloan presents more difficulty: the motorcyclist and the car owner had both been parties to the earlier proceedings in which the motorcyclist was held to be entirely responsible and the only reason for not treating the motorcyclist as bound by that determination in the subsequent proceedings was the fact that the driver of the motor car was a party to the subsequent proceedings but not to the earlier proceedings. That result followed from a strict application of the traditional rules as to issue estoppel.

It should be noted, however, that, in the course of his judgment, O’Donnell LJ referred to a more expansive approach which had recently been adopted in the Court of Appeal in England to the question of issue estoppel in McIlkenny v. Chief Constable of the West Midlands [1980] 1 QB 283 but indicated his disagreement. Accordingly, in common with the other members of the court, he rejected a contention that the court in the exercise of its inherent jurisdiction should stay the proceedings as an abuse of process. However, since the House of Lords subsequently held in the same case, on appeal from the Court of Appeal sub. nom. Hunter v. Chief Constable of the West Midlands Police [1982] AC 529, that the invocation of the abuse of process doctrine was justified in such circumstances, the authority of Shaw v. Sloan in this area must be regarded as seriously weakened. The same considerations would apply to my unreported decision in McGinn v. McShane, in which I followed Shaw v. Sloan on this topic but procul ab urbe and in the absence of detailed legal argument.

In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgment to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled again by a law suit which has already been decided.

The inherent jurisdiction to strike out proceedings as being an abuse of process should, as already noted, be exercised only with great caution. Thus, in Belton v. Carlow County Council, to which I have already referred, this Court held that it was not an abuse of process for shareholders in a company to defend a claim being made against them in their personal capacity, when the issue on which the claim depended had been resolved against the company in earlier proceedings. In the present case, however, the only reason for instituting the present proceedings is to circumvent the final and conclusive judgment of the Circuit Court so as to put the tractor owner or his insurers in a more advantageous position, in both these proceedings and the High Court proceedings brought by the motorist. It would be difficult to imagine a clearer case of an abuse of process which calls for intervention by the court.

It should finally be pointed out that this case is concerned solely with the question of issue estoppel and abuse of process as they arise in civil proceedings. The question as to whether rulings in criminal proceedings can provide a basis for issue estoppel or the staying of proceedings on the ground of abuse of process was considered in Hunter v. Chief Constable of the West Midlands Police, Kelly v. Ireland [1986] ILRM 318 and Breathnach v. Ireland [1989] IR 489 but does not arise for consideration in this case.

I would allow the appeal and substitute for the order of the High Court an order setting aside the order of the High Court giving liberty to issue the third party notice.

 

Peter Pringle v Ireland and the Attorney General

1992 No. 326P

High Court

19 November 1993

[1994] 1 I.L.R.M. 467
(Murphy J)

MURPHY J

delivered his judgment on 19 November 1993 saying:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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