this Judgment I am dealing with Motions brought by each of six of the nine
Defendants in this action in which they seek Orders dismissing the Plaintiff's
claims against them. The majority of these Defendants invoke Order 19 Rule 27,
Order 19 Rule 28 and the inherent jurisdiction of the Court, that is, the
majority seek an Order striking out the pleadings on the basis that they are
unnecessary or scandalous or that they tend to prejudice, embarrass or delay a
fair trial of the action (Rule 27), or they say the pleadings disclose no
reasonable cause of action (Rule 28) or they say that upon a general review of
the case, including pleadings and evidence, I should conclude that there is no
possibility that the Plaintiff can win his case and therefore in the exercise
of my inherent jurisdiction I should strike out the Plaintiff's claims.
would point out at the outset that the words "unnecessary", "scandalous" and
"embarrass" in this rule have a particular meaning which derives from their
context in the Rule book and that this meaning is not the usual meaning of
these words; accordingly, legal submissions employing these terms may tend to
sound hurtful, aggressive or insensitive in the mouths of lawyers in
applications such as the present one in a way which is not necessarily intended.
would also say at the outset that an application such as the present one is
dealt with at a technical level; that is by reference to established principles
of pleading and by reference to concepts of legal causation and recoverable
loss, rather than on the merits of any matters in contention which may be
raised or alluded to in the application or in the papers.
for example, in considering these motions I am not concerned with deciding and
do not determine the suggestion for example, that the Plaintiff is irrational,
violent, obsessional or unintelligent, or the suggestions from the other side
alleging institutionalised racism or the more serious allegation linking the
activities of some of the Defendants with the unfortunate death of the
Plaintiff's father. My only concern is, rather, to reach conclusions on the
relatively technical questions of pleading and the processing of the claim as
have had the benefit of comprehensive submissions from Counsel representing
each of the six Defendants concerned and also a lengthy submission partly in
written form and partly delivered orally in Court by the Defendant and I am
grateful for the assistance these have given me.
as the applications are based on the allegation that the pleadings disclose no
reasonable cause of action I must assume that all of the relevant matters
pleaded by the Plaintiff will be established by him; I must also take account
of any amendment of the actual pleadings which could "save" the case being made
by the Plaintiff. If, as in this case, the Defendants have made it clear that
they intend to plead the Statute of Limitations and such a defence is one which
in the circumstances must inevitably succeed, then I consider that I should
also take that into account in this application.
if issues raised between the same parties have already been finally dealt with
on the merits by a Court of competent jurisdiction, then again the law of
estoppel makes it clear in my view that such issues should not be tried again
and the relevant pleadings accordingly struck out.
as these applications are grounded on the inherent jurisdiction of the Court,
if I came to the conclusion that it is inconceivable, for whatever reason, that
the claim must fail, then I should strike it out at this stage, but, bearing in
mind that the Court should be very slow to exercise such a jurisdiction.
where the applications are grounded on the allegation that the pleadings are
unnecessary or scandalous or tend to embarrass, prejudice or delay a fair trial
I must have regard to the relevance or not of the material on the issues
speaking the Plaintiff's case originates from a land transaction whereby the
first Defendant in 1986 acquired land from the Plaintiff's father surrounding
the home of the Plaintiff. The Plaintiff seeks in these proceedings to have
that transaction set aside and makes comprehensive allegations of various kinds
of wrongdoing against several of the Defendants who at one time or another
acted for him or his father as their Solicitor, against the Law Society, and
against the first Defendant as current owner and occupier of these lands and
against the last three Defendants as representing the State.
Defendant is The Law Society and the claim in broad terms is that it failed in
its obligation to provide the Plaintiffs with a comprehensive list of
Solicitors who would be prepared to act in their case.
are, further, allegations or certainly imputations that the Plaintiff's father
was inadequately served by this Defendant in his professional capacity, but,
once again, on a review of any material before me, I am driven to the
conclusion that no such case could conceivably succeed. I must, therefore,
strike out the claim as against this Defendant.
of the complaints now raised in these proceedings have already been raised and
finally determined in proceedings entitled
Kelly -v- William Ewing and Robert Ewing
(Nos E21/88 and E31/1988). I have been furnished with a full record of these
proceedings and it is quite clear that a number of issues now sought to be
raised in the present proceedings were raised and dealt with in the earlier
cases. I am satisfied that the following issues raised in these present
proceedings have already been dealt with in the earlier cases:-
between the Plaintiff and this Defendant I consider that these issues are
governed by the principles of issue estoppel and cannot now be raised again. I
have considered the evidence and also the case of
C F Finance Company Limited -v- Masri & Anor
(No 3) (1987: 1: Q.B.: 1028) in reaching the foregoing conclusion. I deal with
the balance of the claims against the Defendant as follows:-
addition to the foregoing I am obliged to conclude having regard to the overall
volume of material placed before me that the litigation is extremely onerous to
this Defendant and in the circumstances I consider that I am further obliged to
strike out the proceedings as against this Defendant pursuant to the inherent
jurisdiction of the Court.
Defendant submits that the intervention of a Court Order breaks the chain of
causation between any alleged wrongdoing and the result, with the consequence
that there can be no loss in respect of which the present Plaintiffs could
recover and therefore the Plaintiff's father could have no complaints. With
regard to the present Plaintiff it is submitted that this Defendant was
entitled on the material before me to proceed upon the basis that she was
acting for William Ewing, accepted her instructions from him and therefore that
these proceedings disclose no cause of action at the suit of this Plaintiff
against this Defendant. In my view this submission is correct. It is not open
to this Plaintiff to re-litigate his father's case or to attempt to reopen the
instructions given by his father to this Defendant. No reasonable cause of
action is disclosed and therefore I must strike out the claim against this
the several complaints made against this Defendant it is submitted that these
proceedings are statute barred given that they commenced in May, 1999 and the
matters pleaded against this Defendant occurred between 1975 and 1988. In
addition Counsel for this Defendant adopts the submissions already referred to
in this judgment in relation to the exercise by me of my inherent jurisdiction.
It is also submitted that this Plaintiff has no
to make claims on behalf of his father.
I explained to the Plaintiff in the course of the hearing it is the virtually
invariable practice of the Court to grant such liberty once it appears that a
defence might be available to a Defendant, albeit, perhaps, that the
enlargement of time would be granted on terms.
conclusion, I wish to repeat what I said at the beginning, namely, that in
dealing with the applications I am confined to a consideration of technical
issues which are concerned with pleading, the legal concepts of a cause of
action, legal causation and recoverable loss, rather than with any evaluation
of the matters which are clearly of concern to the Plaintiff and are the
subject of his complaint, but which are, in my opinion, incapable of being made
the subject of justiciable controversy in legal proceedings in these Courts. I
wish to say to the Plaintiff - although it is, of course, gratuitous of me to
do so - that the justice which he seeks, and in which he has expressed
confidence is not available at the behest of any Court on this earth so far as
I am concerned but it may indeed, be available in some more exalted, perhaps
infinite, dispensation. It is clear that the Plaintiff has put enormous time
and energy into these proceedings and equally that my decisions will be
difficult for him to cope with.
apart from the Plaintiff I must also bear in mind the interests of the other
parties to this litigation - the six Defendants who have brought these
applications. Litigation is onerous and takes a heavy toll of all involved in
it. It is my duty if I am convinced, as in this case I am, that a Plaintiff's
case has no conceivable hope of success, to strike it out when asked to by the
Defendant rather than let it proceed to the cost and pain of all parties
involved and with no conceivable legitimate gain. I would add that in reaching
my judgment on these applications I have taken into account the vast bulk of
documentation and its contents prepared by the Plaintiff and the fact that much
of it is irrelevant to any conceivable justiciable issue which could be raised
between the parties.
follows from my decision that the Plaintiff's motions for judgment against
these Defendants in this case which are before me must inevitably fall with the
case itself and these therefore I must also dismiss.