THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND
2013 No. 13515P
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THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND
JUDGMENT of Mr Justice Max Barrett delivered on 1st June, 2017.
1. The origins of Ms Mannion’s claims in the above-entitled proceedings appear to date back to certain litigation arising out of the purchase of a property in Tralee close on 30 years ago. In the course of that litigation, Ms Mannion retained a number of firms of solicitors. However, as the matter progressed, she became unable to afford legal representation and made an application for free legal aid to the Legal Aid Board.
2. In 2006, Ms Mannion instituted judicial review proceedings against the Legal Aid Board, the Minister for Justice, Ireland and the Attorney General, seeking, inter alia, a declaration that the Legal Aid Board had failed to provide Ms Mannion with a solicitor in private practice, rather than a solicitor who was employed by the Legal Aid Board, a state of affairs that Ms Mannion contended was a breach of her constitutional rights and also contrary to the provisions of the European Convention on Human Rights. Ms Mannion further alleged that the Civil Legal Aid Act 1995 fails to satisfy the constitutional obligations of the Minister for Justice and Ireland and the Attorney General in relation to the provision of free legal aid for civil cases in breach of Art. 6 of the European Convention on Human Rights.
3. For the purposes of her judicial review application, Ms Mannion was represented before the High Court by both junior and senior counsel. Her application was unsuccessful, with the judge who heard it (McGovern J.) noting inter alia in his judgment (see Mannion v. The Legal Aid Board and ors IEHC 413, 21) that he did not consider that there was “any failure on the part of the respondents [i.e. the Board, the Minister, Ireland and the Attorney General] to meet the requirements of natural or constitutional justice”. An appeal to the Supreme Court, in which Ms Mannion appears to have represented herself, likewise proved unsuccessful (see Mannion v. The Legal Aid Board and ors  IESC 9).
4. Following the dismissal by the Supreme Court of the just-mentioned appeal, Ms Mannion, on 14th December, 2010, issued a plenary summons in High Court proceedings No. 2020/11464P; however, no statement of claim issued until 16th February, 2015. Notably, Ms Mannion, on 9th December, 2013, also issued a further plenary summons in High Court proceedings No. 2013/13515P; on foot of this later plenary summons, Ms Mannion delivered a further statement of claim on 2nd March, 2015. Although both statements of claim differ in certain non-material respects, they both arise from the same set of circumstances and have the same or practically similar objectives.
5. On 29th September, 2015, the Chief State Solicitor’s Office, acting for the second, third and fourth-named defendants, wrote to Ms Mannion alleging that her proceedings were misconceived, unsustainable, bound to fail, and frivolous and vexatious. Following some further interaction between the parties, the Chief State Solicitor’s Office wrote to Ms Mannion on 10th November, 2016, informing her of that Office’s intention to seek to have both sets of proceedings struck out and, not ungenerously in the circumstances, offering that each side would bear its/her own costs to that time if Ms Mannion would agree formally to discontinue her proceedings. Ms Mannion declined to do so. As a consequence, on 30th January last, the Chief State Solicitor’s Office issued two notices of motion (one in each set of proceedings) seeking: (1) an order striking out Ms Mannion’s claim against the second, third and fourth-named defendants on the grounds that her case as pleaded in her statement of claim is bound to fail; (2) a like order on the grounds that Ms Mannion’s case as pleaded in her statement of claim is frivolous and vexatious; and (3) certain ancillary reliefs.
II. Ms Mannion’s Concerns in More Detail
i. A Summary Chronology.
6. Ms Mannion has provided notably detailed statements of claim and affidavits in the within proceedings, so much so that perhaps the most efficient way of treating with them is by way of the annotated chronology below which flags in truncated form what seem to the court to be among the principal events relating to the within application. Where a precise date of a particular event is not known or not strictly relevant, the court identifies at the relevant point of its chronology the sequence in time at which the event described occurred.
Summer 1995 Ms Mannion seeks assistance of the Legal Aid Board to assist her in a claim against a solicitor for alleged negligence, conflict of interest and breach of contract. The Board also later takes over the running of a separate but related claim against a builder.
March, 1998 District Court case hearing of claims adjourned.
July, 1998 Ms Mannion fails against the solicitor and is partly successful against the builder but is disappointed with the damages awarded.
Thereafter Ms Mannion applies to the Legal Aid Board to appeal the decision of the District Court. This application is denied. Ms Mannion herself brings an unsuccessful appeal. Following this unsuccessful appeal, Ms Mannion, inter alia, commences proceedings against the solicitors who originally had charge of the proceedings against the builder, alleging that they had acted negligently and in breach of contract and also bullied her. Ms Mannion then runs through a series of solicitors in seeking to prosecute this last-mentioned claim.
November, 2004 Ms Mannion applies to the Legal Aid Board for assistance to progress the claim aforesaid and also a professional negligence claim against the Legal Aid Board.
March, 2005 Ms Mannion requests that the Legal Aid Board provide her with an independent solicitor to represent her in her proceedings against the Board. This is declined.
Late-2005 Ms Mannion engages a private solicitor to progress her judicial review proceedings.
7th December, 2007 Ms Mannion’s judicial review application fails before McGovern J.
26th February, 2010 Ms Mannion’s appeal to the Supreme Court fails.
Thereafter Ms Mannion seeks unsuccessfully to have a complaint admitted to hearing by the European Court of Human Rights. On 14th December, 2010, Ms Mannion issues a plenary summons in High Court proceedings No. 2010/11464P seeking damages from the defendants for, inter alia, negligence, breach of contract and breach of statutory duty. Ms Mannion’s ongoing negligence case against the solicitors who initially represented her in her claim against the builders is set down for hearing in December 2011. Ms Mannion applies to the Legal Aid Board for legal aid in these proceedings.
December, 2011 Following application by the defendant solicitors (and, it seems, the Legal Aid Board) Ms Mannion’s claim against the defendant solicitors is dismissed.
Thereafter Ms Mannion applies to the Legal Aid Board for legal aid to fund an appeal against the dismissal aforesaid.
9th December, 2013 Ms Mannion issues a plenary summons in High Court proceedings No. 2013/13515P seeking damages from the defendants for, inter alia, negligence, breach of contract and breach of statutory duty.
June, 2016 Ms Mannion succeeds before the Court of Appeal in her appeal against the dismissal by the High Court in December 2011 of her professional negligence claim against the Legal Aid Board.
24th January, 2017 Ms Mannion’s initial negligence case against the Legal Aid Board is settled in her favour.
ii. Statements of Claim.
7. As mentioned above, although the statements of claim in Ms Mannion’s High Court proceedings Nos. 2010/11464P and 2013/13515P differ in certain non-material respects, they both arise from the same set of circumstances and have the same or practically similar objectives. However, in her statement of claim delivered on 2nd March, 2015, concerning the later-instituted proceedings, Ms Mannion helpfully identifies which particular segments of that statement of claim pertain to the Legal Aid Board and which to the other defendants, stating as follows in respect of those other defendants (the emphases appear in the original):
“9. The following paragraphs relate to claims against the Minister for Justice and Law Reform, the Attorney General and Ireland.
10. In July 2004, the High Court caused a discontinuity and subsequent delay to the plaintiff’s case…by permitting her legal team to come off record….[Kearns P.] ordered all parties to convene to try to resolve the area of disagreement and return to court ten days thereafter….
11. July 2004. Further to the above, [O’Neill J.]…was sitting on the day and although he said he found the solicitors code of practice ‘very ambiguous’, he stated he could not keep them on record….
12 July 2004. The aforementioned ruling by [O’Neill J.] largely contributed to the disruption and delay in the processing of her [i.e. Ms Mannion’s] professional negligence case against the Legal Aid Board and [the solicitors who had initially acted against the builder], causing great distress to the Plaintiff in the years that followed and profoundly and detrimentally affected her life and that of her children.
13. November 2007. Re. the JR hearing in the High Court, in the notes of counsel, signed off on by [Mc Govern J.]…the judge states that the solicitor at the Tallaght Law Centre still had reservations regarding the so called ‘protocol’ which was supposed to protect the interests of the Plaintiff: it was the reason he did not award costs against her. In the circumstances it begs the question, why did the judge not award all costs to the Plaintiff?
14. [Paras. 14-17 relate to complaints concerning the Supreme Court on whose actions the court cannot and does not adjudge.]….
18. February 2010. Re the JR Appeal, Counsel for the Minister for Justice submitted that there was nothing wrong with the 1995 Legal Aid Board Act and suggested that the Board had been in a position to behave constitutionally. He further submitted that the Plaintiff’s case should rather be against the Legal Aid Board for maladministration rather than against the Minister for Justice….
19. The following paragraphs relate to the case against the Legal Aid Board….”
8. The court must respectfully conclude that all it sees in the segment of the statement of claim from which the above-quoted text is extracted are (a) complaints about the findings of High Court judges which ought properly to be made by way of appeal, (b) complaints about the conduct of the Supreme Court, the conduct of which court the High Court is not competent to adjudge upon (and which the court therefore declines to do), and (c) a statement about what counsel for the Minister is claimed to have observed at an appeal-hearing before the Supreme Court, any which statement is, at best, of historical interest.
9. So far as the liability of the second, third and fourth-named defendants is concerned, one must look to the submissions made by Ms Mannion in court for greater clarity as to the gravamen of her case against the second, third and fourth-named defendants. There is also the following averment in her affidavit of what appears to be the 2nd or 25th of March last (the photocopied version is unclear):
“[T]he Minister for Justice and the Attorney General are responsible for the implementation of legislation upon which the Legal Aid Board exercises its remit; if that statutory legislation permits the Board to behave in an entirely unconstitutional and unaccountable manner, then it necessarily follows that the Minister is the party who must be challenged in order to amend the constitutional deficit of the Legal Aid Act in its present form.” (Emphasis in original).
10. Essentially when one has regard to the just-quoted text and to Ms Mannion’s submissions at hearing, it appears that her complaints are that the Act of 1995 allows the Legal Aid Board (so Ms Mannion claims) to behave in an unconstitutional manner, that the constitutionality of the Act of 1995 was not the subject of Ms Mannion’s previous applications, and that the Minister, etc. must be party to any challenge to constitutionality. In this regard, the court cannot but note again that McGovern J. expressly found in his decision in Mannion v. The Legal Aid Board and ors  IEHC 413, 21 that he did not consider that there was “any failure on the part of the respondents [being the Legal Aid Board, the Minister, Ireland and the Attorney General] to meet the requirements of natural or constitutional justice”. Thus Ms Mannion, in a case deriving from the same set of circumstances and with practically similar objectives, is seeking to commence from the starting-point that the Legal Aid Board has been empowered to behave and has behaved in an unconstitutional manner, notwithstanding that this is a starting-point which flies in the face of the just-quoted finding arrived at by McGovern J. in his judgment, which finding was not upset by the Supreme Court on appeal.
III. Applicable Law
i. Frivolous and Vexatious.
11. The circumstances in which the court’s inherent jurisdiction to strike out proceedings as frivolous and vexatious presents was identified by Costello J. in DK v. AK  ILRM 710. DK was a case in which a father of whom allegations had been made of sexual abuse by him against his infant son brought actions against healthcare professionals responsible for treating the child, for negligence, breach of contract and breach of his constitutional rights. Various unsuccessful motions were brought by a number of the defendants seeking a strike-out of the proceedings on the grounds, inter alia, that they were frivolous and vexatious. Commenting on the inherent jurisdiction of the court in this regard, Costello J. observed as follows, at 713:
“The principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff’s action can be shortly stated. Basically the jurisdiction exists to ensure that an abuse of the court’s process does not take place. If it is established by satisfactory evidence that the proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases.”
12. In Fay v. Tegral Pipes 2 IR 261, the Supreme Court was presented with a situation in which it was sought to sue a company and certain onetime directors of a wound-up company for the alleged mis-doings of the company that had been wound up. Allowing an appeal against a failed strike-out application, McCracken J., when giving judgment for the Supreme Court, elaborated further on the meaning of the phrase ‘frivolous and vexatious’, observing as follows, at 266:
“While the words ‘frivolous and vexatious’ are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”
13. In Behan v. McGinley 1 IR 47, Mr Behan sought to bring two sets of proceedings against counsel who had represented him in a previous failed breach of contract and negligence claim, alleging professional negligence in the first set of proceedings and conspiracy in the second. Dismissing both sets of proceedings, Irvine J, observed, inter alia, as follows, at 66:
“[T]he decision of the High Court (Costello J.) in Barry v. Buckley  IR 306 makes it clear that, for the purposes of an application where the court is asked to exercise its inherent jurisdiction to stay proceedings, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case. In this regard, the court has had regard to the extensive affidavits, exhibits and transcripts produced to the court by the parties for the purposes of determining the outcome of the within motions.”
14. In Ewing v. Ireland and ors IESC 44, a case concerned with an appeal with a strike-out order made by the High Court in proceedings concerning a land dispute which had been ongoing for over 30 years by the time matters reached the Supreme Court, MacMenamin J., affirming the order of the Supreme Court observed as follows, at paras. 26-28:
“ As well as the jurisdiction outlined which obtains under the Rules of the Superior Courts, the court also has an inherent power to strike out entire proceedings (see the range of cases commencing with Barry v. Buckley  IR 306, cited in Ch. 16 of Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed. (2012); and also Sun Fat Chan v. Osseous Ltd  1 IR 425). In such an application, the court considering the matter is not limited to a consideration of the pleadings but may be free to hear evidence on affidavit relating to issues in the case. This jurisdiction exists to ensure that an abuse of court process does not take place.
 This more radical power should be used sparingly. A court must take the Plaintiffs case at its highest, and assume that all the relevant matters which are pleaded by a Plaintiff will be established by him. A court must also take into account that a situation may exist where a simple amendment of the pleadings could “save” the case.
 In Riordan v. Ireland (No 5)  4 IR 463, O'Caoimh J in the High Court considered Dykun v. Odishaw (Unreported, Alberta Court of Queen's Bench, Judicial District of Edmonton, 3 August 2000), which in turn referred to the decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 DLR (4th) 685. He held that the following matters tended to show that a proceeding is vexatious:
‘(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
(b) where it is obvious that an action that cannot succeed, or if the action would lead to no possible good, or if no reasonable person could reasonably expect to obtain relief;
(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;
(f) where the Respondent persistently takes unsuccessful appeals from judicial decisions.’
This is a helpful summary which is now frequently applied.”
15. It appears to the court that (i) the factors identified by MacMenamin J. in the above-quoted text characterise both sets of proceedings that are the subject of the applications brought by the second, third and fourth-named defendants, and (ii) when the contents of Ms Mannion’s statements of claim are considered in the context of the proceedings previously brought by her, they fall, in that context, to be treated as frivolous, vexatious and an abuse of process.
ii. Res Judicata.
16. Regrettably for Ms Mannion, the court must also find that the doctrine of res judicata is against her in that the starting-point of her proceedings, viz. that the Legal Aid Board has been empowered to behave, and has behaved, in an unconstitutional manner, involves re-litigation of a point that has already been determined by McGovern J. in his judgment of 2007.
17. In this regard the court recalls Sweeney v. Bus Átha Cliath/Dublin Bus  1 IR 576, There Mr Sweeney instituted proceedings for personal injuries against the defendants, even though he had previously been a defendant to Circuit Court proceedings brought by Dublin Bus arising out of the same incident and which had been settled with Dublin Bus’ insurers, the matter then being struck out on consent. Treating with the issue of res judicata in his judgment, O’Neill J., in a judgment that was later affirmed by the Supreme Court, observed as follows, at paras. 19-20:
“19. The matter, however, does not end there. In approaching the question posed in the preliminary issue in this case, this court cannot confine itself to the simple application of the traditional rules as to issue estoppel. In my view, it is also necessary to consider whether or not the continuance of the proceedings, sought to be precluded, would amount to an abuse of the process of the courts and whether the court should invoke its inherent jurisdiction to strike out those proceedings as being an abuse of process. There is no doubt that this jurisdiction must be exercised with great caution.
20. The following passage from the judgment of Keane J., as he then was, in McCauley v. McDermott  2 ILRM 486, at p 498, illustrates the manner in which the problem must be resolved:-
‘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 lawsuit which has already been decided.’”
18. More recently, in O’Driscoll v. McDonald IEHC 100, Barton J. affirmed as a test to determining whether res judicata arises, a test previously applied by Kelly J. in McConnon v. President of Ireland and ors IEHC 184, para. 15, observing as follows, at para. 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:
(a) That there was a judgment of a court or tribunal exercising a judicial function of competent jurisdiction;
(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.”
19. Critically, when it comes to the within proceedings, McGovern J. expressly found in his decision in Mannion v. The Legal Aid Board and ors IEHC 413, 21 that he did not consider that there was “any failure on the part of the respondents to meet the requirements of natural or constitutional justice”. The doctrine of res judicata has the effect that it is not open to Ms Mannion, in a case deriving from the same set of circumstances and with practically similar objectives, to commence from the starting-point that the Legal Aid Board has been empowered to behave and has behaved in an unconstitutional manner: that is a starting-point which flies in the face of the reasoned finding arrived at by McGovern J. in his judgment on the case that was before him, which finding was not upset by the Supreme Court.
iii. The Rule in Henderson v. Henderson.
20. Ms Mannion appears to place some reliance on the following observation of Hardiman J. in her failed appeal to the Supreme Court in Mannion v. The Legal Aid Board and ors  IESC 9, 15:
“The applicant did not proceed in this Court, or apparently in the High Court, to urge the unconstitutionality of the statute or any part of it. This indeed is raised only ambiguously, if at all, in the pleadings. Accordingly, the Court, like the High Court, did not consider this aspect and would not in fact have been properly constituted to do so. The applicant’s case was, rather, that the Board itself had failed to fulfil its constitutional duties.”
21. Ms Mannion (mistakenly) draws from the foregoing observation the conclusion that her case at first instance, and on appeal, failed because the constitutionality of the Act of 1995 was not challenged. However, in truth the point to be drawn is that while the constitutionality of the Act of 1995 was not pleaded, it could have been pleaded but was not, and for reasons which doubtless appeared good to the counsel who represented Ms Mannion before the High Court.
22. With the within proceedings, it seems to the court, one enters classic Henderson v. Henderson territory, with Ms Mannion now seeking to litigate a point which could have been brought forward in previous proceedings and which, on Ms Mannion’s own account, should have been brought forward in order to secure her a win in those proceedings, but was not. The difference between the position res judicata-wise and Henderson-wise is, as Clarke J. observes in Moffitt v. Agricultural Credit Corporation plc IEHC 245, para. 3.9, echoing Hardiman J. in AA v. The Medical Council 4 IR 302, that the rule in Henderson v. Henderson (1843) 3 Hare 100 does not fall to be applied in an automatic or unconsidered fashion but is capable of a more nuanced application than one would typically associate with the application of the doctrine of res judicata.
23. Notwithstanding, however, any greater freedom of action that the court enjoys in the realm of Henderson v. Henderson, it seems to the court that it has in truth a fairly limited scope of action when confronted by a plaintiff who is seeking to litigate a point which could have been brought forward in previous proceedings in which she was represented at first instance by able counsel and which, on her own account, should have been brought forward in those proceedings, and was not. Had Ms Mannion represented herself in the High Court in those previous proceedings, the court would be in a position where it would have to bring to bear in its considerations the fact that a lay-litigant might well not even consider, never mind elect not to advance, a point of law that would likely occur as a matter of course to counsel learned in the law. But Ms Mannion was represented by counsel before the High Court in those proceedings. Consequently the court considers that, had it not reached the conclusions it has reached as regards (a) the frivolous and vexatious nature of the within proceedings, and (b) the effect of the doctrine of res judicata as regards the continuation of the within proceedings, it would in any event (c) have barred her from continuing the within proceedings by reference to the rule in Henderson v. Henderson. Were the court to conclude otherwise in this last regard, it seems to it that it would be setting at nought the “important purpose” of that rule, to which Lord Bingham refers in Johnson v. Gore Wood & Co. 2 AC 1, 32 (Lord Bingham’s observations in this regard being later quoted with approval by Hardiman J. in Carroll v. Ryan 1 IR 309, 319), that “important purpose” being “to protect a defendant against the harassment necessarily involved in… the same subject-matter”.
24. Ms Mannion appears, regrettably, to hold the Legal Aid Board in low esteem. By reference to certain actions of the Board, which she alleges to be unconstitutional but which the High Court in proceedings concerning the same parties and arising from the same set of circumstances has previously held not to evince “anyfailure on the part of the respondents [including the Legal Aid Board] to meet the requirements of natural or constitutional justice”, she now seeks to construct proceedings that would assail the constitutionality of the Act of 1995. Such proceedings, for the various reasons identified above, cannot stand. Every legal system must fix a boundary to the march of court proceedings which involve but a re-litigation of previously adjudicated disputes. That boundary is demarcated in our legal system by the triple fence erected by the law concerning frivolous and vexatious proceedings, the doctrine of res judicata, and the rule in Henderson v. Henderson. No matter what way one approaches the within proceedings, it seems to the court that to allow them now to continue would be, for the various reasons stated previously above, to allow a contravention of that law, a breach of that doctrine, and to defeat an important purpose of that rule. Any one of these consequences would suffice as a basis on which to strike out the within proceedings. The court considers all three to present. Thus a strike-out of both sets of High Court proceedings presently in play between Ms Mannion and the second, third and fourth-named defendants will now be granted. The court appreciates that this conclusion will likely come as a disappointment to Ms Mannion; however, to the extent that she has sought, through the proceedings aforesaid, to highlight publicly such deficiencies as she perceives to present in the manner in which the Legal Aid Board operates and/or has operated (which deficiencies are but alleged) Ms Mannion at least has the comfort of knowing that she has now done so.