Judgment Title: McConnon -v- President of Ireland & Ors
Neutral Citation:  IEHC 184
High Court Record Number: 2011 9378P
Date of Delivery: 23/05/2012
Court: High Court
Composition of Court:
Judgment by: Kelly J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 184
THE HIGH COURT
[2011 No. 9378 P]
PRESIDENT OF IRELAND, AN TAOISEACH, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND, ATTORNEY GENERAL, COMMISSIONER OF AN GARDA SÍOCHÁNA AND ZURICH BANK IRELAND
JUDGMENT of Mr. Justice Kelly delivered on the 23rd day of May, 2012
2. Unfortunately, that project ran into difficulties and Mr. McConnon was unable to discharge his obligations to the Bank.
3. The Bank commenced proceedings against Mr. McConnon in this court on 30th November, 2010. Mr. McConnon was represented by senior and junior counsel and a solicitor in those proceedings. Birmingham J. heard an application for summary judgment against Mr. McConnon and on 4th March, 2011, delivered a reserved judgment on that issue. Despite the endeavours of Mr. McConnon’s counsel, that judge was unable to identify any arguable case or triable issue which would justify the refusal of summary judgment. Accordingly, he gave judgment against Mr. McConnon for the full amount.
4. Mr. McConnon appealed the decision of Birmingham J. That appeal has yet to be heard. Mr. McConnon sought from the Supreme Court a stay on execution of the judgment of Birmingham J. pending the determination of his appeal. On 8th July, 2011, the Supreme Court refused that stay of execution.
5. On 20th October, 2011, Mr. McConnon commenced the present proceedings. On 7th November, 2011, he served a notice of discontinuance of the action against the first defendant, the President of Ireland.
6. On the application of the Bank, this action was transferred to the Commercial List and the Bank and remaining defendants brought motions seeking to have the respective claims against them struck out in limine. On the hearing of these motions on 19th April, 2012, Mr. McConnon consented to his claim against the Taoiseach, the Minister, Ireland, the Attorney General and the Commissioner of the Garda being struck out. Accordingly, only Mr. McConnon’s claim against the Bank remains and this is my judgment on the Bank’s application to have that claim struck out.
Mr. McConnon’s Claims
The Banker Books Evidence Act 1879, as amended,
National Debt Act, 1882
Savings Bank Act, 1893
2. An order staying all court proceedings as against the plaintiff by the seventh name defendant Zurich Bank Ireland and in particular the enforcement of any judgment and the commencing of bankruptcy proceedings until these proceedings are determined.
3. Damages both general and punitive.
4. An order for directions or such other order as this honourable court shall deem appropriate.
5. An order for costs.”
2. A declaration that by reason of the misrepresentation of the seventh named defendant, its servants and agents, the loan facility agreement is void and of no legal force and effect, and in the alternative.
3. A declaration that by reason of the misrepresentation of the seventh named defendant, its servants and agents, the plaintiff is released from his indebtness (sic) to the seventh named defendant under the loan agreement dated 15th June, 2007.
4. Further and in the alternative, a declaration that the seventh named defendant acted in breach of its fiduciary duties, contractual duties and duty of care which if (sic) owed to the plaintiff as the plaintiff’s banker in the manner in which it managed the plaintiff’s loan account facility.
5. Such further other declaratory and other orders as this honourable court may deem fit.
6. Damages for misrepresentation.
7. Damages for breach of contract.
8. Damages for breach of fiduciary duties.
9. Damages for negligence including negligent misstatement and breach of duty.
10. Damages for unlawful interference with the plaintiff’s economic interest.
11. Interest pursuant to the Court Act 1981.
11. Over and above that rule there is an inherent jurisdiction in the court to strike out an action if it is clear that it must fail. In describing that jurisdiction, Costello J. in Barry v. Buckley  I.R. 306 at 308 said that:-
14. The inherent jurisdiction to dismiss or strike out proceedings in limine can also be invoked in circumstances where somebody attempts to relitigate matters already decided conclusively by a judicial tribunal of competent jurisdiction. Such a determination is conclusive. A party is precluded from relitigating the matters decided in the judgment or indeed from giving evidence to contradict them in subsequent proceedings.
15. In order to successfully rely on this doctrine, it must be shown that there was:-
(b) That decision must have been a final and conclusive judgment.
(c) There must be an identity of parties.
(d) There must be an identify of subject matter.
Final and Conclusive Judgment
18. I am told that there is no direct authority on this topic in this jurisdiction and so I was referred to decisions in England and Northern Ireland.
19. In The Sennar (No. 2)  1 WLR 490, Lord Diplock in dealing with an issue of estoppel per rem judicatam said this at p. 494:-
21. The same topic fell for consideration by the High Court in Northern Ireland in the case of Deighan v. Sunday Newspapers Limited  N.I. 105. In that case, the plaintiff brought proceedings in the High Court in Northern Ireland arising out of an alleged defamatory publication in the Sunday World Newspaper. He had already sued in respect of the same publication in this jurisdiction. In a trial before a judge and jury in February 1982, judgment was entered for the defendant. The plaintiff appealed to the Supreme Court which dismissed his appeal. Later, he made an application to the European Commission of Human Rights complaining under Article 6 of the European Convention on Human Rights that he had been denied a fair and public hearing by an independent and impartial tribunal in a number of respects, in particular, because one of the judges of the Supreme Court hearing the plaintiff’s appeal, held shares in the defendant’s holding company. The Commission rejected all of the plaintiff’s claim as inadmissible on the ground that they were manifestly ill-founded. In May 1982, he commenced proceedings in Northern Ireland in respect of the publication of newspaper articles identical to those in respect of which he had sued unsuccessfully in this jurisdiction. An application was brought to have his action in Northern Ireland struck out on the ground of issue estoppel. It was argued that the matters in issue had already been decided by the High Court in Dublin. In the course of his judgment, Carswell J. (as he then was) said:-
The conditions for operation of the principle of issue estoppel arising from the judgment of a foreign court were recently considered by the House of Lords in The Sennar  2 All E.R. 104.”
24. In these circumstances, I am satisfied that the judgment of Birmingham J. is capable of raising a res judicata despite the fact that there is an appeal pending from it to the Supreme Court.
The Rule in Henderson v. Henderson
26. In Henderson v. Henderson  3 Hare 100, the Vice Chancellor, Sir James Wigram said:-
28. In the course of his judgment in that case, Hardiman J. said that although the principle expressed in Henderson v. Henderson had never been doubted, there has in recent years been a good deal of debate as to its precise legal nature and taxonomy and as to the circumstances in which and rigidity with which it should be applied. He drew attention to an article by Handley J., in the Law Quarterly Review intituled “A closer look at Henderson v. Henderson”. That author considered that the rule had been applied in too crude and mechanistic a way in Yat Tung Investment Co. Limited v. Dao Heng Bank Limited  AC 581 where proceedings were dismissed as an abuse of process which were an attempt to raise matters which “could and therefore should have been litigated in earlier proceedings”. Hardiman J. appears to approve of an approach which Handley J. preferred and which is found in the judgment of Lord Bingham in Johnson v. Gore Wood & Co.  2 AC 1. There, Lord Bingham said, inter alia:-
The rule in Henderson v. Henderson  3 Hare 100, means that a litigant may not make a case in legal proceedings, which might have been, but was not, brought forward in previous litigation.”
32. In his statement of claim, Mr. McConnon pleads as follows:-
34. A supplemental affidavit was sworn on behalf of the Bank by Richard Murray on 11th February, 2011. That affidavit purported to exhibit an unredacted copy of the Executive Summary at exhibit RM5. That exhibit was accidentally omitted from the booklet of affidavits and exhibits. However, it was furnished to Mr. McConnon’s legal advisors before the hearing and was, it is said, handed into court to Birmingham J. during the course of the hearing which gave rise to his reserved judgment. This fact is sworn to by Mr. Richard Murray in this application where he says at para. 11 of his affidavit sworn on 11th January, 2012, as follows:
36. In a lengthy affidavit sworn by Mr. McConnon on 19th April, 2012, he appears to tacitly accept the correctness of Mr. Murray’s assertion concerning the document being before the court. This is what Mr. McConnon says:-
38. In these circumstances, I am of the view that this Executive Summary, which he now wishes to ventilate, is not new evidence for the purposes of this application. It was available to his counsel and the court when the Bank’s application for summary judgment was heard.
39. In these circumstances, it is not necessary to further consider this question of new evidence.
40. I now turn to the orders sought by the Bank on this application.
The Plenary Summons Reliefs
42. I am unable to find any provision in those statutes creating obligations on the part of the Bank which could justify the making of an order of the type contemplated. Quite apart from there being an absence of any legal basis for such an order being made, I am unable to identify any factual material to justify the making of such an order even if it were possible to do so.
43. Accordingly, insofar as this relief is concerned, I am satisfied that it has no reasonable prospect of success, and accordingly, in the exercise of my inherent jurisdiction, I dismiss it.
44. The second relief sought in the plenary summons is for an order staying all court proceedings as against Mr. McConnon by the Bank, and in particular, the enforcement of any judgment and the commencement of bankruptcy proceedings until such time as the instant proceedings are determined.
45. The question of a stay on the judgment of Birmingham J. has already been decided by the Supreme Court. By its order of 8th July, 2011, it refused to place a stay of execution on his order. It is not open to this court to revisit that decision. That is what this court is being invited to do in respect of this second relief. Accordingly, I dismiss Mr. McConnon’s claim for this relief.
46. There follows on the plenary summons a claim for damages both general and punitive. The statement of claim also seeks damages and I will consider those reliefs in that context presently.
The Statement of Claim Reliefs
48. There then follows a claim for damages for misrepresentation, breach of contract, breach of fiduciary duty, negligence and for unlawful interference with the plaintiff’s economic interests.
49. The contention of the Bank is that all of these claims, both for declaratory relief and damages, are all res judicate as either having been decided by Birmingham J. or falling with the ambit of the rule in Henderson v. Henderson.
50. It is necessary now to look at the decision of Birmingham J. on the application for summary judgment.
The Judgment of Birmingham J.
52. These four possible defences were:-
(c) Frustration and
(d) The “code of conduct point”.
The threshold to be overcome if the defendant is to be given liberty to defend is a very low one, but, on this issue, low as it is, it has not been made out. In my view, the question which Hardiman J. says is to be posed, namely, whether it is very clear that the defendant has no case admits of only one answer - so far as this suggested defence is concerned, the defendant has no case.”
55. Insofar as this argument was concerned, the judge was no less forthright. He said:-
A part of the doctrine of estoppel is the requirement that there would be an element of unfairness or unconscionability in permitting the promissor to welch on what he has offered. Leaving aside that what the bank offered was limited to offering a standstill period, I can find nothing unfair or inequitable or unconscionable in a party that has lent money seeking to be repaid.
I can see no arguable basis for suggesting that an equitable remedy would involve extinguishing the right of a bank that has lent a very large sum of money for a commercial development to be repaid.
Again, I am satisfied that the defendant has failed to make out even an arguable defence based on the invocation of the doctrine of estoppel.”
57. In the course of his judgment, he refers to a decision of my own in Ringsend Property Ltd. v. Donatex  IEHC 568, where I quoted with approval a passage from Chitty on Contracts where it is stated:-
59. Birmingham J. concluded his judgment with some general observations. They included a comment that this:-
The defendant decided to proceed and borrow the money and I can see no arguable basis whatever for suggesting that he can be absolved from liability to repay. Accordingly, I am satisfied that this is one of the rare cases where a plaintiff is entitled to summary judgment.”
60. On a consideration of the judgment of Birmingham J. and what is now pleaded against the Bank in Mr. McConnon’s statement of claim, I am satisfied that neither the declaratory relief nor the claim for damages are capable of being pursued in this litigation because they are subject to the res judicata rubric. Either these allegations were raised (albeit perhaps in a somewhat different form) or ought to have been raised. That they were not so raised renders them subject to the rule in Henderson and Henderson and, applying that rule in the fashion identified by Lord Bingham in Johnson v. Gore Wood, they are, in my view, no longer justiciable.
61. In these circumstances, I dismiss all of the claims which are made against the Bank in the statement of claim.
62. Insofar as it may be suggested that Mr. McConnon is seeking relief in respect of an alleged tort of reckless lending and that that does not fall within the ambit of material which was or ought to have been raised before Birmingham J., I am satisfied such a tort does not exist as a civil wrong in Irish law. In this respect, I agree with the judgment of Charleton J. in ICS Building Society v. Grant  IEHC 17. Thus, even if that allegation does not fall to be dismissed on the basis of res judicata, it is dismissed as having no reasonable prospect of success.