Neutral Citation:  IEHC 100
THE HIGH COURT
[2012 No. 111215 P]
LARRY McDONALD, DEIRDRE McDONALD AND BARNEY McDONALD
JUDGMENT of Mr. Justice Bernard J. Barton delivered the 11th day of February, 2015
1. There are a number of motions before the court brought by both the plaintiffs and the defendants, however, it has been agreed between the parties that this motion should be dealt with first.
2. This matter comes before the court by way of the defendants motion on notice for an order pursuant to the provisions of O.19, r.28 of the Rules of the Superior Courts striking out the proceedings on the grounds that the pleadings disclose no reasonable cause of action and are frivolous and vexatious, alternatively, for an order pursuant the inherent jurisdiction of the court to strike out the proceeding on the grounds that they are frivolous, vexatious, must fail, and are an abuse of process.
Background - Litigation History
4. Historically, the parties to these proceedings were involved in a number of contracts which commenced in 2005 and which may be summarised as follows:
(b) Subsequent to the resale of the lands, the plaintiffs agreed to purchase from the first and second named defendants a dwelling house and shed on 0.75 acres of zoned lands for €500,000. This contract was dated the 2nd June, 2006 and was to be completed on the 31st July, 2006. It was a term of that contract that on closing the first and second named defendants would enter into a caretaker’s agreement with the plaintiffs allowing them to remain in possession of the dwelling house and lands for six months from the date of completion of the sale.
(c) By a further contract of even date, the plaintiffs agreed to purchase from the second and third defendants 26 acres of partially zoned lands for €2m. This sale was to be completed on the 13th April, 2006. The contract provided that the vendors would be entitled to the use of the lands for agricultural purposes from the date of completion of the sale until the land would be required by the purchasers for development or on the happening of other events specified in the contract and that the defendants would on closing execute a caretaker’s agreement. This contract also provided that the plaintiffs were to bring the houses, to be built by them to a shell finish under the contract at (a) above, up to builder’s finish within 36 months of the closing.
(d) By a further agreement made between the plaintiffs and the first and third defendants in or about the month of November 2007, it was agreed that the terms of the first and third contracts at (a) and (c) above would be varied by providing for the payment by the plaintiffs of €350,000 to the first and third defendants in lieu of the obligation to construct the three houses.
6. A caretaker’s agreement was also entered into between the plaintiffs and the first and third named defendants in respect of the lands the subject matter of the contract at 4. (c) infra.
7. It is common case between the parties that the second and third contracts at 4. (b) and (c) above were interconnected for the purposes of giving effect to a transaction for the sale of all of the property concerned for €2.5m.
8. Quite separately, the first and second defendants had hoped to complete the building of a house for themselves during the pendancy of the caretaker’s agreement. This project was not realised and at the end of the term the first and second defendants failed to vacate the dwelling house and adjoining lands. Disputes and differences arose between the parties which led, amongst other things, to the non-payment of €320,000 being the balance due by the plaintiffs to the first and third defendants on foot of the contract at 4. (d) infra, the sum of €30,000 having already been paid by the second named defendant.
9. In an attempt to secure payment of the balance, the first named defendant retained the services of a debt collection agency known as Viper Debt Recovery and Repossession Services Ltd., a firm controlled by one Martin D “Viper” Foley. This agency engaged in conduct which was described by the President of the High Court in his judgment in the previous proceedings as being absolutely despicable and of the most reprehensible kind and which, it appears, had been employed for the purposes of extracting payment but with the result that the gardaí became involved. Thereafter, the first named defendant dispensed with the services of that agency and, together with the third named defendant, instituted proceedings against the plaintiffs by way of plenary summons on the 16th December, 2009.
10. A statement of claim was delivered in those proceedings on the 10th March, 2010 in which reference was made to the contracts at 4(a), (c) and (d) infra. It was alleged that these plaintiffs were in breach of contract in failing to pay €320,000, being the balance of the monies due, and an order for judgment in that amount was sought. No reference was made in the statement of claim to the contract at 4(b) infra.
11. Retention of the debt collection agency and the subsequent withdrawal of instructions after contact from the gardaí was acknowledged by the first and third defendants in the statement of claim and in the subsequent replies to particulars given in the previous proceedings.
12. Separate defences and counterclaims were delivered by these plaintiffs in those proceedings requiring full proof of the contract at 4(d) infra.
11. Breaches of contract and the caretaker’s agreement on the part of the first and second defendants in these proceedings (although the second defendant was neither a plaintiff nor a defendant on the counterclaim in those proceedings) arising out of their failure to vacate the dwelling house and adjoining lands at the end of the term resulting in the plaintiffs suffering loss, damage, inconvenience and expense were pleaded.
13. In addition to the foregoing the second named plaintiff pleaded a case in negligence arising out of the use and occupation of the dwelling house as well as a case against all defendants for intimidation, assault and harassment arising as a result of the actions of the debt recovery agency.
14. The trial of the action came on for hearing before the President of the High Court who, having heard the evidence, gave judgment and made an order on the 17th July, 2012. In his judgment the President found that the first and third defendants herein had proved their case and ordered the payment of €320,000 by these plaintiffs.
15. These proceedings were commenced by way of plenary summons on the 6th November, 2012. The contracts at para. 4(a), (b), (c) and (d) infra are pleaded in the statement of claim as are the respective caretaker’s agreements. It is alleged that the defendants were in breach of contract and in particular the caretaker’s agreement in respect of the dwelling house, shed and adjoining lands by failing to vacate these on the expiry of the term. In addition it was alleged that the defendants were in breach of the terms of the caretaker’s agreement and were guilty of negligence in causing the dwelling house to become dilapidated to the point where it was rendered derelict and uninhabitable with the consequence that these plaintiffs suffered loss damage and expense.
16. In addition to the foregoing, the second named plaintiff pleads, but now as against all defendants, a plea which he had made in his counter claim in the previous proceedings arising as result of the wrongful actions of the debt collection agency retained by or on behalf of the defendants.
17. A transcript of the evidence, the judgment and order of the President made on the 17th July, 2012 together with all of the pleadings in the previous proceedings were furnished at the hearing of the motion now being considered by the court.
18. The first named defendant swore an affidavit on his own behalf and on behalf of the second and third defendants for the purposes of the motion. This affidavit sets out the grounds upon which the defendants seek the relief sought and which may be summarised as follows:
(b) That the matters which the plaintiffs are now seeking to litigate have already been litigated and determined in the previous proceedings;
(c) Insofar as there is some additional dimension to these proceedings, which the defendants do not accept, that ought to have been raised in the previous proceedings; and
(d) These proceedings are motivated solely to frustrate execution of the judgment obtained in the previous proceedings and that for these reasons the present proceedings are frivolous vexatious and an abuse of the process of the court.
(b) The third named defendant was not a party to the previous proceedings in any capacity;
(c) No adjudication or order was made on the counterclaims;
(d) The President confined himself to determining the plaintiff’s claim in relation to the fourth contract at 4(d) above; and
(e) The losses suffered by the plaintiffs arising from the alleged breaches of contract in the caretaker’s agreement at para. 4 (b) above were not dealt with or determined.
(b) The claim for losses arising as a result of the over holding and/or the deterioration of the dwelling house to the point where it was in an uninhabitable condition were expressly not dealt with but were considered by the President to be separate causes of action which were either not properly or at all pleaded in the counterclaim, but which could be made the subject matter of subsequent proceedings;
(c) These plaintiffs would not be precluded from pursuing an action in respect of such matters in the event that they should decide to bring such proceedings;
(d) The actions of the debt collection agency were absolutely despicable and of the most reprehensible kind but the court was not authorised to take that into account in reduction of the sum as claimed in those proceedings such being not relevant to the claim;
(e) The President otherwise confined himself to dealing with the plaintiff’s claim to recover the balance of €320,000.
21. The order of the court made the 17th July, 2012 is confined to adjudging that the first and third defendants herein were entitled to recover as against the plaintiffs herein €320,000 and costs. It is apparent from the judgment given and the order made by the President that no order was made as to the substance of or costs on the counterclaims, nor was any application made in relation thereto. The court was advised at the hearing of this application that no appeal was taken by any party against the judgment and order of the 12th of July, 2012.
22. It is also apparent from the transcript of the evidence given at the trial, particularly at pages 39, 81, 88 and 89, that the court, whilst recognising the existence of claims or potential claims and whether or not properly adequately or at all pleaded in the counterclaims, confined itself to the claim in those proceedings to recover the sum of €320,000. That this is so is also evident from the judgment of the court and in particular at page 99 of the transcript where the President stated
23. The plaintiffs represented themselves and made oral submissions at the hearing. Submissions were also made both orally and in writing on behalf of the defendants. All of these submissions have been considered by the court and the substance of which may be summarised as follows.
The defendant’s submissions.
(b) That as these plaintiffs had recovered nothing on their counterclaims in the previous proceedings and that as there had been no appeal against the judgment and order of the 17th of July, 2012, all of the issues which had been raised in the previous proceedings were concluded and that the matters therein adjudicated upon where res judicata.
(c) That the plaintiff’s failure to apply to amend the proceedings by incorporating a plea that they had suffered serious losses consequent upon the over holding and alleged deterioration in the condition of the property could not now be made the subject matter of new proceedings having regard to the principle or rule enunciated in the case of Henderson v. Henderson  3 Hare 100.
(d) That the previous proceedings were prosecuted to conclusion on all of the relationships between the parties centering around the sale of the lands and ancillary agreements, including the caretaker’s agreements, and that any such dispute as arose from those proceedings was conclusively resolved in favour of the first and third defendants herein and that being so it was submitted that these matters are res judicata and/or that the present proceedings are an abuse of process.
(e) That whilst it was accepted by the defendants that in exercising its jurisdiction under O.19 r.28 the court is confined to dealing with the application on the basis of the pleadings alone it was also submitted that the court in exercising its inherent jurisdiction to strike out a pleading or to dismiss proceedings is not so confined but is entitled to take all relevant matters into account.
(f) That the second named defendant in these proceedings could have been joined as a co-defendant to the counterclaims in the previous proceedings but as that had not been done and having regard to the rule in Henderson v. Henderson, the plaintiffs are now estopped on that ground alone from maintaining a claim against her and are in any event estopped because her interest was the same as that of her husband who was the first named plaintiff in the previous proceedings and on foot of which he was successful against these plaintiffs.
(g) That the comments of the President in the course of the trial and in his judgment in the previous proceedings were not an authority which enabled the plaintiffs to proceed again on the issues which he had decided and which included all matters raised by these plaintiffs in their defences and counterclaims.
(h) That the President having indicated that he would consider an application to adjourn the proceedings at the expense of the plaintiffs so as to enable them to plead and particularise the case in respect of fiscal losses, the failure by these plaintiffs to apply meant that they were now precluded from pursuing such a claim in these proceedings.
26. The plaintiffs submitted
(b) That the claims which they wanted to make, including those comprised in their counterclaims and which were now the subject matter of these proceedings, were not determined and no order was made in respect of them.
27. These plaintiffs were unrepresented at the trial of the action before the President and, indeed, are not legally advised or represented in these proceedings. They are, therefore, lay litigants and to whom, in my view, the court should show some latitude especially when dealing with matters of law, practice and procedure and that this is particularly so, when, as in this case, the inherent jurisdiction of the court is invoked for the purposes of striking out their proceedings.
28. It is apparent from the transcript and from their submissions that the plaintiffs, as lay litigants, appear to have concluded, as they submit they did, that those matters which are now the subject of these proceedings, including their claims for fiscal losses and which they wanted to advance, were for another day. That no adjudication or orders were made in respect of the causes of action pleaded in their counterclaims would seem to be clear both from the transcript of the judgment and the order of the court of the 17th of July, 2012.
29. This brings me to the order which was made in the previous proceedings and to a further submission of the plaintiffs. It is accepted by the first named defendant in his affidavit grounding this application that no order was made by the President in relation to the counterclaims. The plaintiffs have submitted that this was because everybody knew that such claims were not being considered by the President and that it was a matter for the plaintiffs in these proceedings to decide whether such proceedings should be brought at a later date and that this was the reason why no order had been made nor sought in relation to the counterclaims.
31. Order 19, rule 28 of the Rules of the Superior Courts 1986, as amended, provides:-
33. A defence has yet to be delivered in these proceedings, the defendants deciding instead to bring this motion. Apart from the summons therefore the only substantive pleading is the plaintiff’s statement of claim. Insofar as the application is for relief under O. 19, r. 28 that is to be decided on the assumption that the statements in the statement of claim are true and will be proved at the trial. Accordingly, the motion relates to and is grounded on the plaintiffs’ statement of claim. The affidavits filed are relevant to the extent that they set out the factual situation as to the pleadings. They are not relevant insofar as they deal with matters extraneous to the pleadings in question and any such extraneous evidence should be ignored. As to the foregoing statements of the law see Barry v. Buckley  I.R. 306; McCabe v. Harding  ILRM 105; Aer Rianta c.p.t v. Ryanair  1 IR 506 and Rayan Restaurant Limited v. Gerald Kean practising as Kean Solicitors  IEHC 29. It follows from these authorities that when entertaining an application under O.19, r.28 the court, in determining whether or not the pleadings disclose any reasonable cause of action or whether or not the action is frivolous or vexatious, does so by reference to the pleading in question and not otherwise.
34. Reference has already been made earlier in this judgment to the content of the statement of claim and the case as pleaded by the plaintiffs, accordingly, it is not necessary to repeat the content here: suffice it to say that the causes of action which are pleaded on behalf of both plaintiffs are in contract and negligence; in addition the second named plaintiff also pleads additional torts arising out of the retention and conduct of the debt collection agency retained by the first named defendant.
Conclusion on the Application to strike out under Order 19, Rule 28
Inherent Jurisdiction on an Application to Strike Out - The Law
37. It is acknowledged by the defendants in their submission that the inherent jurisdiction of the court to strike out proceedings is one to be exercised with restraint and should be on the basis of agreed facts. It was submitted that for the purposes of this application that the material agreed facts were the previous proceedings prosecuted to a conclusion on the relationships between the parties centring on the sale of the lands and ancillary agreements. The defendant’s submit that whereas the facts pertaining to the relationship between the parties were disputed, the dispute was, nevertheless, conclusively resolved in favour of the first and third defendants (being the plaintiffs in the previous proceedings) by the judgment and order of the President of the 17th July 2012. Accordingly, it is submitted, that the present proceedings are res judicata and are an abuse of process.
38. Apart altogether from the jurisdiction of the court as provided for under O.19, r.28 of the Rules of the Superior Courts 1986, there is unquestionably an inherent jurisdiction in the court to strike out an action if it is clear that it must fail. That jurisdiction was described by Costello J., in Barry v. Buckley  I.R. 306 at p. 308 where, in his judgment he observed that
40. The rationale for this approach by the court was explained by McCarty J. in his judgment in the unanimous decision of the Supreme Court in Sun Fat Chan v. Osseous Limited  1 I.R. 425 at p. 428 were he said
Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceeding; often times it may appear that the facts are clear and established but the trial would disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour.”
43. When the court is exercising its inherent jurisdiction to strike out pleadings or dismiss proceedings whether on the basis that no cause of action is disclosed or that the proceedings are frivolous and vexatious or are otherwise an abuse of process, the court is not confined to determining such questions by reference to the pleadings alone, rather, it is entitled to take into account all matters which may be relevant including matters of evidence as are necessary for the purposes of determining such questions.
Frivolous or vexatious claims.
(b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain reliefs;
(c) Where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) Where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) Where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;
(f) Where the respondent persistently takes unsuccessful appeals from judicial decisions”.
Matters of fact.
Onus of proof.
Claims that are bound to fail
Abuse of Process
49. Reference has already been made to Fay v. Tegral Pipes and Doherty v. Minister for Justice, Equality and Law Reform in connection with the purpose of the court’s inherent jurisdiction. With regard to the meaning of the term “abuse of process” Isaacs J. in Varawa v. Howard Smith Co. Limited  13 CLR. 35, 91 stated:
51. The bringing of proceedings for an improper purpose or in which serious allegations are made against a party without any or any adequate foundation or where there is impropriety or misconduct in the issue or prosecution of proceedings may all constitute an abuse of process of the court. See Sean Quinn Group Limited v. An Bord Pleanala  1 I.R. 505,  2 ILRM 294; Grant v. Roche Products (Ireland)  IEHC 161; as well as O’Siodhachain v. O’Mahoney (unreported, Supreme Court, 7th December, 2001), Cavern Systems Dublin Limited v. Clontarf Residents Association  ILRM 24; Carroll v. Law Society of Ireland, unreported Kelly J. 2 May 2001; Shelley-Morris v. Bus Atha Cliath  1 IR 232 O’Connor v. Bus Atha Cliath  4 IR 459.
Requirements and time.
54. In relation to the application invoking the inherent jurisdiction of the court, the defendants submitted that these proceedings should be struck out on the grounds that they are res judicata or, if there is any part of them that are not res judicata, then those matters are caught by the so called rule in Henderson v. Henderson.
55. The defendants cited in support of their submissions McConnon v. President of Ireland & Ors  I.R. 449, Mount Kennett Investment Company v. O’Meara  3 IR 547 and AA v. The Medical Council and Attorney General infra.
56. Res Judicata is a matter of defence and must be raised in the proceedings. In order to succeed in this defence the party relying upon it must establish and satisfy the following criteria:-
(b) That the decision must have been a final and conclusive judgment;
(c) That there be an identity of the parties or their privies; and
(d) That there is an identity of subject matter.
Cause of action estoppel.
(A) Judgement of a court or tribunal.
(B) Final and conclusive judgement.
60. As to the second of the requirements, the judgment must be final, conclusive and made on the merits even though it be the subject of an appeal. See McConnon v. President of Ireland & Ors infra and Bradshaw v. M’Mullan  2 I.R. 412 at p.424. Where Lord Shaw stated
(C) Identity of parties
61. As to the third requirement that the parties or their privies in law must be the same and must sue and be sued in the same capacity, O’Donnell L.J. in Shaw v. Sloan infra stated that:-
(D) Identity of subject matter
62. There must be an identity of subject matter so that in the case of cause of action estoppel this will arise only arise where the causes of action are exactly the same, likewise, issue estoppel can only be successfully pleaded where the same issue has previously been decided on the merits. The fact that an issue may have been raised in the pleadings is insufficient if that issue is not in contention between the parties and it has not been adjudicated upon.
The rule in Henderson v. Henderson.
65. The rule was stated in the following terms by Wigram VC in Henderson v. Henderson  3 Hare 100 in the following terms:
The Rule and Res Judicata distinguished.
The importance of the distinction lies in the consequences. If a matter is res judicata then, in the absence of a defence to the application of the doctrine such as fraud, the availability of fresh evidence in respect of issue estoppel only, estoppel, or other special cases, the plea will necessarily succeed.
On the other hand, where reliance is placed on the rule in Henderson v. Henderson to the effect that it would be abuse of process to now allow the party concerned to raise a different issue which could have been raised in the original proceedings, it is well settled that the court adopt a more broad based approach.”
69. In his judgment in Mount Kennett Investment Company and Others v. O’Meara and Others infra Clarke J. dealt with the situation which arises from a claim which was before the court in previous proceedings but which was not dealt with in the final order of the court as follows:
On the other hand, where an aspect of a case is before the court and is not dealt with, it may be appropriate to infer that the relevant party had abandoned that aspect of their claim. In those circumstances it seems to me that, strictly speaking, it is not appropriate to consider an attempt to re-litigate that aspect of the case under the heading of res judicata. It would, however, fall under very careful scrutiny under Henderson v. Henderson  3 Hare 100. The fact that the case has been brought and abandoned would be a very significant consideration leaning heavily against the court exercising any discretion it might have to allow it to be re-litigated. In those circumstances it would seem to me that a case brought and abandoned would face an even greater struggle than a case not brought in the first place.
However, where, as here, the proper inference to draw is neither that the claim was dismissed or that it was abandoned but rather that the judge agreed that it be deferred, then it is hard see how it would be an abuse of process to allow it to be reactivated.”
Hardiman J. in his judgment A.A. v. The Medical Council and the Attorney General infra stated
Application of the law and decision.
73. It is quite apparent from a reading of the statement of claim in the previous proceedings that that action was brought to recover the balance of €320,000 on foot of an agreement pleaded to have been made between these plaintiffs and the first and third defendants in the previous proceedings. Deirdre McDonald, the second named defendant in these proceedings, was not a party to the contract at para. 4 (a) infra, being the agreement which had been varied by the agreement at 4(d) infra, and which had provided for the building of three houses by these plaintiffs, nor did she have any interest in nor was any claim made to that effect in those proceedings.
74. Whilst the first and second named defendants are husband and wife neither in law is the privy of the other by virtue of that relationship nor is she a privy by blood. The second named defendant had no legal title or interest in the contract at 4 (a) above. She was not in any way a party to nor was it asserted that she benefited or was entitled to benefit from the agreement at 4. (d) infra. Whilst the first and second defendants were clearly possessed of the same interest in the agreement at 4 (b) infra, it was not in respect of that contract that the first and third named defendants in those proceedings sought payment of €320,000 but, rather, on the basis of the contract at para. 4 (d) infra, moreover, it is my view on the evidence that the second named defendant did not possess in law an interest in the outcome of the claim of the first and third named defendants as plaintiffs in the previous proceedings such as would have enabled her to have a voice or say in how those proceedings were to be conducted or concluded, accordingly, the requirements to be satisfied in order to render her a privy of the first or third named defendants in law are not satisfied.
75. Whilst the judgment and order of the 17th July 2012 in the previous proceedings constitutes a final and conclusive judgment and decision of the plaintiff’s cause of action in those proceeding to recover payment of €320,000 there was not, in my view, any adjudication on the merits of the second named plaintiff’s cause of action arising as a result of the alleged negligence on the part of the first and second named defendants and pleaded in his counterclaim.
76. No cause of action in negligence was raised in the defence or counterclaim of the first named plaintiff in the previous proceedings so the doctrine of res judicata in the strict sense does not arise. Whether it should have been pleaded, as it was by the second named plaintiff in the these proceedings, is a matter to which I will return later in this judgment and which necessarily arises as a consequence of the inclusion of a plea of negligence by these plaintiffs against the first and second named defendants in the statement of claim herein and arising as a result of their use and occupation of the dwelling house.
77. Whilst the plaintiffs pleaded breaches of the contract and of the caretaker’s agreements in the defences and counterclaims which they delivered in the previous proceedings, it is in my view abundantly clear from the transcript and from the judgment of the President that there was no adjudication on the merits of these claims either, a conclusion also consistent with the final order of the court.
78. Even if there had been a final and conclusive judgment on the merits in respect of the second named plaintiff’s action in negligence or the claim of both plaintiffs for breach of contract, that would not be res judicata as between the plaintiffs and the second named defendant since she was neither a party nor a privy of the defendants in the previous proceedings or either of them. Furthermore, there was no adjudication on the merits in relation to the losses alleged to have been suffered by the plaintiffs as a result either of the breach of contract arising from the failure to deliver up possession of the dwelling house or as a result of it being rendered uninhabitable and that this is so is also consistent with the judgment and order of the 17th of July, 2012, accordingly, insofar as those issues were raised on the pleadings in the previous proceedings they too are not res judicata.
79. Turning to the claim of the second named plaintiff in these proceedings against the defendants for damages for assault, intimidation, harassment and loss of earnings and arising as a result of the wrongful actions of Viper Debt Recovery and Possession Services Ltd as agents of the defendants and in respect of which the second named plaintiff seeks to make the defendants vicariously liable, that case was pleaded by the second named plaintiff in his counterclaim in the previous proceedings. Whilst some evidence was heard in relation to that matter it is apparent not only from the transcript of the evidence but also from the judgment and order of the court that that claim could not and was not being considered or taken into account in diminution of the plaintiff’s claim.
80. Whilst there was a finding of fact as to the conduct of the debt collection agency there was no final and conclusive judgment on the merits of the second named plaintiffs counterclaims in those proceedings and arising as a result of that conduct. Moreover, there was no adjudication in relation to the issue as to whether or not the first and third named defendants or either of them were vicariously liable for the actions of the debt collection agency in law, nor was there any evidence given in relation to or an assessment made in respect of the losses and damage alleged to have been suffered consequent upon the conduct in question and all of which is again consistent with the fact that no orders were sought or made on the counterclaims. Accordingly, it is the judgment of the court that as the requirements necessary to be satisfied have not been met in respect of the claim of the second named plaintiff against the defendants that claim is also not res judicata.
81. With regard to the question as to whether or not these claims should be struck out as an abuse of process pursuant to the rule in Henderson v. Henderson, it seems to me to be unnecessary to determine whether the second named defendant in these proceedings ought to have been joined as a defendant to the counterclaim in the previous proceedings or whether the first named plaintiff in these proceedings ought to have pleaded a case in negligence since, on the findings made and the conclusions to which I have come, the court in the previous proceeding confined itself to determining the plaintiff’s claim to recover payment of €320,000, and more particularly because it was not mute in relation to these plaintiff’s claims whether or not pleaded properly or at all.
82. A reading of the transcript judgment and order of the court does not permit a conclusion that the plaintiffs intended to or that they abandoned any of the causes of action pleaded in their counterclaims or otherwise which they wanted to pursue; the contrary is the case. The court was quite entitled to confine itself to a determination of the claim for €320,000. The plaintiffs, particularly having regard to the fact that they were neither legally advised nor represented in the previous proceedings, were entitled to conclude, as the evidence shows that they did, that those matters whether or not pleaded or particularised in their counterclaims were for another day not only because of what was said in the judgment but also because of what was said by the President in the course of the trial when the plaintiffs sought to introduce or otherwise lead evidence in relation to those matters .Accordingly , and insofar as it is necessary to do so, these are considered by me to constitute special circumstances within the meaning of the rule in Henderson v. Henderson, as it is now understood, and warrants the court in exercising its discretion by declining the relief sought on that ground; the court will so order.
83. Finally, having regard to the foregoing findings and conclusions there is not in my view any proper basis upon which the court could exercise its inherent jurisdiction to strike out these proceedings or any part of them on the grounds of either being frivolous or vexatious or otherwise as an abuse of the process of the court. Although not pursued at the hearing insofar as there may be non compliance with the Rules of the Superior Courts in connection with the endorsements on or form of the pleadings this is susceptible to remedy by order on application to the court.
84. I will discuss with counsel the final form of the order to be made and will entertain such applications as the parties may wish to make in relation to the other motions before the court having due regard to this judgment.