British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Flanagan v AIB Private Banking & Ors [2020] IECA 57 (28 February 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA57.html
Cite as: [2020] IECA 57
[New search] [Printable PDF version] [Help]
Page 1 ⇓
Whelan J.
McGovern J.
Donnelly J.
BETWEEN/
THE COURT OF APPEAL
Neutral Citation Number: [2020] IECA 57
Record Number: 2017/577
PETER FLANAGAN
- AND –
PLAINTIFF/APPELLANT
AIB PRIVATE BANKING, AIB MORTGAGE BANK,
ALLIED IRISH BANKS PLC, AIB CORPORATE BANKING LIMITED,
AIB FINANCE LIMITED, AIB SERVICES LIMITED AND FRANK FUREY
DEFENDANTS/RESPONDENTS
JUDGMENT of Ms. Justice Máire Whelan delivered on the 28th day of February 2020
1. This is an appeal from orders made on the 6th December, 2017 by the High Court
(O’Regan J.) on the application of the second, third, fourth, fifth and sixth named
respondents dismissing the appellant’s claims against them as res judicata and/or
precluded by the application of the rule in Henderson v Henderson, save for the claim in
negligence made by the appellant against the second and third named respondents
(hereafter “the bank”).
Factual and procedural background
2. The appellant, prior to the events the subject matter of the proceedings, owned a number
of restaurants and residential investment properties, which he had purchased as business
and pension investments. He has been a customer of AIB bank since the 1970s and has
been provided with various loan facilities from time to time in respect of his investments.
Summary Summons June 2015
3. By way of summary summons issued on the 17th June, 2015 (Allied Irish Banks PLC and
AIB Mortgage Bank v Peter Flanagan, Record No. 2015/1149S) the bank sought judgment
against the appellant in the sum of €7,027,149.77 on foot of four loan agreements
entered into by the appellant in 2005, 2007, 2008 and 2009 respectively. The appellant
contended that the seventh named defendant in the within proceedings, Mr. Frank Furey,
a senior lender employed by the bank, involved himself in the appellant’s business affairs
and induced him to enter into the first two aforementioned loan transactions, coercing the
appellant and his son (who was not a party to the said proceedings and is not a party to
this appeal) into becoming partners with him in property developments which ultimately
caused his business to collapse. Mr. Furey is not a party to this appeal. The alleged
Page 2 ⇓
partnership with Mr. Furey broke up in early 2008. A contention put forward on affidavit
by the appellant in the said proceedings and advanced now in the within plenary
proceedings was that the bank failed to formally conclude or take any steps on foot of an
internal investigation to address the formal complaints made by the appellant in relation
to Mr. Furey’s conduct or the loss and damage caused to him as a result.
4. The appellant sought to defend the proceedings and filed a replying affidavit sworn the
21st August, 2015 asserting that he had a bona fide defence to the bank’s application for
summary judgment. His grounds of defence were as follows: -
(i) that a conflict of interest existed because Mr. Furey was a “silent partner” in the
property investments in 2005;
(ii) that the 2008 and 2009 loan agreements were signed by the appellant under
duress and in the absence of independent legal advice; and
(iii) that it had been agreed by the bank at a meeting in early December 2013
attended by the appellant and his financial adviser, Mr. Des Walshe, FCA, that in
light of the misconduct of Mr. Furey, the debts of the appellant would be forgiven.
5. By notice of motion issued on the 21st August, 2015 the appellant sought to have Mr.
Furey joined as a third party in the summary proceedings – this application was refused.
Summary Judgment
6. On the 16th October, 2015 Hedigan J. granted summary judgment in favour of the bank
in the amount claimed ruling that none of the three grounds of defence raised by the
appellant disclosed a bona fide defence or met the test in Harrisrange Ltd v Duncan
[2003] 4 IR 1. The appellant did not appeal the summary judgment.
7. In relation to the alleged existence of a conflict of interest, Hedigan J. noted that the
appellant, an experienced businessman, had the assistance of a solicitor throughout all
the dealings, had represented himself as the sole borrower in the loan agreements and
had not complained about the alleged conduct of Mr. Furey to the bank until February
2010 – 23 months after the partnership allegedly broke up. When the bank was informed
of the purported behaviour of its official, it inaugurated disciplinary proceedings which
concluded when Mr. Furey, who denied any wrongdoing, became ill and left the bank –
any conflict that existed was exclusively between Mr. Furey and his employer at the bank,
the judgment held.
8. Hedigan J. found that the allegation of duress was not supported by any evidence and
that, short of some clear indication of a disability on the part of a borrower, there was no
legal obligation on the bank to ensure a customer has independent legal advice. He found
that no credible basis existed to support the debt forgiveness agreement claimed and that
same was inconsistent with email correspondence which post-dated the alleged
agreement of December 2013. He further noted that there was no affidavit sworn by Mr.
Walshe to support the appellant’s claim.
Page 3 ⇓
Receiver appointed
9. By deeds of appointment dated the 13th March, 2015 and 2nd April, 2015 respectively,
Mr. Ken Tyrrell was appointed as receiver in respect of specified properties of the
appellant held as security for his loans. On foot of the granting of the summary judgment,
a process of disposal of such properties began.
Plenary Summons December 2014
10. The within proceedings were commenced by plenary summons issued on the 23rd
December, 2014. As such they were instituted prior to the summary proceedings, a factor
the appellant appears to attach weight to. The appellant delivered a statement of claim.
The relief claimed included an order setting aside the judgment of Hedigan J., a
declaration that the bank was estopped from relying on security taken over the assets of
the appellant as security for loans, an order setting aside the appointment of the receiver
over the assets of the appellant and in the alternative, damages for negligence, breach of
duty, negligent misstatement and breach of contract in the sum of €7,027,149.77.
Motion to Dismiss
11. The bank issued a motion, which is the subject of this appeal, on the 16th of September
2016, seeking to have the appellant’s claim dismissed on the basis that the within
proceedings were an abuse of process, representing a collateral attack on the decision of
Hedigan J., which decision already determined the issues raised and are thus res judicata,
or, in the alternative, that the proceedings were bound to fail.
12. The motion was grounded on the affidavit of Ms. Lynda Muller, a manager at the bank,
sworn on the 9th September, 2016, who averred that the claim of the appellant as
pleaded in his statement of claim was based on the factual matrix considered by Hedigan
J. in the summary proceedings and that the said issues had already been adjudicated in
full. Reliance was placed on the affidavits sworn by the appellant and Hedigan J.’s findings
on the three defences raised in the summary proceedings.
13. On the 6th December, 2016 Mr. Walshe swore an affidavit in response to the bank’s
motion. Mr. Walshe refers to the existence of a non-disclosure agreement (NDA) and
averred that the bank insisted he sign and commit to it before it would engage with him
in connection with the appellant’s formal complaint against Mr. Furey and the bank. He
deposed that it was for this reason alone that no affidavit was sworn by him in the
summary proceedings, as he believed that he was bound by the agreement he had
signed.
14. In his affidavit, Mr. Walshe averred that during the summary proceedings, counsel for the
bank disclosed material in court in breach of the NDA and that this “selective disclosure”
misled Hedigan J. as to the position in the case before him. Hedigan J. had been unaware
that a formal complaint made by the appellant to the bank concerning Mr. Furey remained
unresolved. Mr. Walshe deposed to the purported dealings between the bank and the
appellant, averring that the bank had acknowledged that Mr. Furey had been guilty of
“serious misconduct” and had agreed that a resolution of the complaint would be based
upon a “restitution of Mr. Flanagan’s financial position”. The affidavit avers to the
Page 4 ⇓
allegedly inadequate manner in which the bank dealt with the appellant’s complaint in its
investigation into Mr. Furey’s actions.
Hearing of this motion before the High Court
15. Before the High Court, counsel for the appellant conceded that he was not entitled to seek
an order setting aside the summary judgment granted against the appellant in October
2015 nor was he entitled to relitigate issues determined in the summary proceedings. All
aspects of the pleadings which amounted to a collateral attack on the summary judgment
were abandoned. The remaining pleas centred upon the appellant’s claim for damages for
negligence and misrepresentation concerning primarily the actions of Mr. Furey but also
the bank in terms of the latter’s vicarious liability for the wrongful actions of its employee
or agent Mr. Furey. During the hearing, counsel for the appellant argued that the bank
was estopped from bringing the motion, submitting that at the outset of the summary
proceedings hearing in October 2015 it was canvassed by the appellant that the bank’s
summary claim and the herein plenary proceedings be heard together, however the bank
objected and in the course of that objection expressly stated in open court that the
appellant could advance any claim he wished in the herein plenary proceedings.
Decision of the High Court on the 6th December, 2017
16. In delivering her decision at the conclusion of the motion, O’Regan J. considered that
vicarious liability was a defence that should have been, and was in its own way, actually
raised as against the banks in the summary judgment claim. She stated at p.123-125 of
the transcript:
“The…plaintiff…gave considerable detail in relation to his dealings with Mr. Furey in
an attempt to resist the summary judgment…just because he didn’t actually use the
words ‘vicarious liability’…does not mean that nevertheless his position as put
forward… before Mr. Justice Hedigan was not that of a vicarious liability character.
I believe it was entirely a vicarious liability character, and to that extent if it is not
under the rule of Henderson v Henderson, it seems to me that it can actually slot
under the rule of res judicata because Mr. Flanagan raised all these dealings with
Mr. Furey and expressed all his misgivings and how he was led astray by Mr. Furey,
nevertheless the Court went on and gave full judgment in the amount of the
outstanding indebtedness to the bank, and that in itself in my view is a significant
matter in dealing with whether or not Mr. Flanagan should be allowed now to
pursue a claim for vicarious liability because of the alleged wrongs of Mr. Furey as
against the banks…
Johnson v. Gore would say that a litigant is not to be unjustly hounded or unjustly
harassed. I think it would be unjust hounding and harassment for the matter now
to be relitigated again…I am not sure that it’s not under the strict rule of res
judicata at all… and if it is not, the circumstances are such that it is something that
was out there, was in the mix and therefore was raised and should not be raised
again…”
Page 5 ⇓
17. The trial judge found that issues concerning the alleged “parking” of the loans,
independent legal advice, duress/undue influence and the existence of a conflict had all
been dealt with by Hedigan J. and were therefore res judicata.
18. The trial judge formed the view that the sole issue which remained outstanding was the
assertion of negligence on the part of the bank, in relation to its investigation of the
appellant’s complaint against Mr. Furey, the seventh named defendant, and the
appointment by the bank of a receiver over the appellant’s assets, issues pleaded in para.
22 (xxviii), (xxix), (xxxi), (xxxiii) and (xxxiv) of the statement of claim.
19. The appellant was ordered to deliver an amended statement of claim reflecting the
remaining balance of the claim.
20. An amended statement of claim was delivered by the appellant on the 21st March, 2018
following a motion issued by the bank to compel delivery of same.
21. Unhappy with the amended statement of claim delivered, the bank issued a further
motion on the 6th June, 2018 seeking to strike out the balance of the proceedings on the
grounds that same did not comply with the order of O’Regan J. That issue is not part of
this appeal.
Grounds of appeal
22. The notice of appeal encompasses the following grounds:
(i) The trial judge erred in allowing the appellant to further prosecute his claim only in
respect of para. 22 (xxviii), (xxix), (xxxi), (xxxiii) and (xxxiv) of his statement of
claim and in determining that the balance of the claim pleaded was res judicata,
save for the deletion of the references to conflict of interest and undue influence
contained in the first paragraph of para. 22 and subparagraphs (xxiv), (xxv),
(xxvi), (xxvii)(c), (xxx) and (xxxii) which the appellant does not seek to appeal.
(ii) The trial judge erred in finding that the issue of vicarious liability should have been
raised in the aforesaid summary proceedings and erred in exercising her discretion
under the rule in Henderson v Henderson in refusing to allow the appellant to raise
the issue of vicarious liability in the herein proceedings.
(iii) The trial judge erred when exercising her discretion under the rule in Henderson v
Henderson in failing to give any or any sufficient weight to the representation made
by counsel for the bank in the summary hearing before Hedigan J. that the
appellant could advance any claim he wished in the plenary proceedings.
(iv) The trial judge erred in failing to give any or any sufficient weight to the
uncontradicted affidavit evidence of Mr. Walshe.
Submissions of the appellant
23. The appellant submits that the decision of Hedigan J. did not consider the question of the
bank’s vicarious liability and made no findings or determination in respect of same nor
was it raised before him. The only issues which Hedigan J. sought to determine were
Page 6 ⇓
whether judgment could be resisted on grounds of (a) conflict of interest and/or (b)
duress/lack of independent legal advice and/or (c) a claim of debt forgiveness. By
contrast, the claims now being advanced in the statement of claim involve different issues
which received no consideration and were not the subject of any determination by
Hedigan J. The appellant argues that the factual background to the proceedings, outlined
in his affidavits sworn in the summary proceedings, does not equate to arguing vicarious
liability as a ground of defence in the summary claim.
24. The appellant further submits that the trial judge was incorrect in determining that the
alleged negligence on the part of the bank to investigate the appellant’s complaint and
the appointment of a receiver are the only issues remaining in the proceedings; one
outstanding issue was the repeated requests made by the bank of the appellant to
forebear instituting the herein proceedings on the assurance that it was conducting an
investigation into the conduct of Mr. Furey. Such requests, it is contended, unequivocally
gave the appellant the understanding that the investigation was not being undertaken as
a purely internal matter solely for the benefit of the bank, but that the appellant had a
real interest and stake in the outcome of same.
25. The appellant, referring to the affidavit of Mr. Walshe, submits that as the bank has
chosen not to contradict his averments by way of a replying affidavit, its contention that
the herein proceedings constitute an abuse of process is itself an abuse of process and an
attempt to deprive the appellant of his right of access to the courts.
26. The appellant posits that the judge erred in striking out the proceedings against the bank
based on the res judicata doctrine. He relies on the decision of McConnon v President of
Ireland [2012] 1 IR 449 wherein Kelly J. (as he then was) stated that to successfully rely
on the doctrine, it must be shown that there was:
“(a) A previous decision of a judicial tribunal of competent jurisdiction.
(b) That decision must have been a final and conclusive judgment.
(c) There must be an identity of parties.
(d) There must be an identity of subject matter.”
27. Within the ambit of identity of subject matter, he contends that there is a distinction
between cause of action estoppel and issue estoppel. The appellant refers to the
judgment of Diplock L.J. in Thoday v Thoday [1964] 1 All ER 341 at p. 352 wherein he
describes the former as that branch of estoppel which: -
"…prevents a party to an action from asserting or denying, as against the other
party, the existence of a particular cause of action, the non-existence or existence
of which has been determined by a court of competent jurisdiction in previous
litigation between the same parties".
28. The appellant argues that in the present case there cannot be any cause of action
estoppel, since the cause of action in the summary proceedings involved the bank’s claim
in contract for payment of a liquidated debt, whereas the cause of action in the plenary
Page 7 ⇓
proceedings is, inter alia, a damages claim for negligence, misrepresentation and breach
of duty.
29. Regarding issue estoppel, the appellant again refers to the judgment of Diplock L.J. in
Thoday at p. 352 where he stated:
“…there may be cases where the fulfilment of an identical condition is a
requirement common to two or more different causes of action. If in litigation on
one such cause of action any of such separate issues whether a particular condition
has been fulfilled is determined by a court of competent jurisdiction, either on
evidence or on admission by a party to the litigation, neither party can, in
subsequent litigation between them on any cause of action which depends on the
fulfilment of the identical condition, assert that the condition was fulfilled if the
court has in the first litigation determined that it was not, or deny it was fulfilled if
the court in the first litigation determined that it was.”
“…The issue must be identical with the issue already determined in earlier litigation
and the determination, when it is an issue of fact, must be a formal determination
of that issue in the same manner as it would have arisen in the second set of
proceedings and not by reason, only, of the application of a principle of law which
would not apply in the second set of proceedings.”
J. considered that the question of whether an issue has been previously ventilated:
“…must be gleaned from the judgments themselves and what the judges actually said,
and not simply by reference to what was actually argued before those Courts.”
30. The appellant submits that his claim in the present case, being a damages suit, is brought
on different grounds which give rise to different issues than those arising in the summary
proceedings which were confined to the three defences raised by him. Therefore, no issue
estoppel arises and thus the requirement for identity of subject matter, as referred to by
Kelly J. above, is demonstrably absent.
31. Regarding the rule in Henderson v Henderson, the appellant relied on the Supreme Court
wherein Hardiman J., having considered the jurisprudence in the area, determined that
the rule could not, in its nature, be applied in an automatic or unconsidered fashion and
that the public interest in the efficient conduct of litigation did not render the raising of an
issue in later proceedings necessarily abusive where, in all the circumstances, the party
concerned was not misusing or abusing the process of the Court.
Page 8 ⇓
33. With regard to the foregoing, the appellant points to a number of factors in the present
case to support the view that the rule in Henderson v Henderson does not apply, arguing
that the court, in the exercise of its discretion, ought not to strike out the present
proceedings. Key arguments included: -
(i) The present proceedings are not “successive proceedings” which the rule in
Henderson v Henderson is intended to protect against – they were in fact the first
in time;
(ii) There is no requirement for a party who is a defendant in proceedings which are
second in time, to maintain by way of counterclaim in those proceedings, the claim
that he has instituted first in time in his own set of proceedings;
(iii) Hedigan J. was aware of the plenary proceedings when he heard and determined
the summary proceedings in 2015 and nothing in his judgment purports to rule that
the appellant was not entitled to continue to pursue that claim for damages;
(iv) The representation made by the bank’s counsel during the hearing of the summary
proceedings that the appellant could maintain whatever claim he wished in the
plenary proceedings in circumstances where a draft statement of claim had been
delivered to the bank was a submission relied on by Hedigan J. when he refused the
appellant’s application to join Mr. Furey as a third party to the summary
proceedings; and
(v) Weight should be attached to the uncontradicted affidavit evidence of Mr. Walshe.
Submissions of the bank
34. Whilst the bank agreed that Hedigan J. did not identify “vicarious liability” as a heading
under which the appellant’s defence to the summary summons proceedings was being
analysed, it contends that the appellant relies on the same factual matrix in both sets of
proceedings. In the summary proceedings, the appellant outlines on affidavit a series of
matters arising from his interactions with Mr. Furey, for which he asserted that the bank
was legally responsible and as a consequence of which he sought to resist the bank’s
claim for repayment of the monies borrowed by him. It is submitted that, in the
statement of claim, while the appellant does not formally plead “vicarious liability”, he
sets out a series of alleged facts relating to his interactions with Mr. Furey on the basis of
which it is alleged that the bank is liable to him. The bank further submits that absent
from the appellant’s analysis is a realisation that “vicarious liability” is not a standalone
cause of action. As pleaded vicarious liability creates no right or entitlement such as
would advance his claim for relief in the proceedings or provides a basis for this Court to
interfere with the order of O’Regan J.
35. The bank argues that the issue of Mr. Furey’s involvement with the appellant and his
alleged unprofessional behaviour has been fully adjudicated upon by Hedigan J. who,
notwithstanding all of the above-mentioned matters, determined the appellant was
significantly indebted to the bank.
Page 9 ⇓
36. The bank seeks to rebut the appellant’s submission that there can be no cause of action
estoppel, stating that the appellant’s plenary proceedings, which had initially sought the
forgiveness of the appellant’s debt and to set aside the unappealed summary judgment,
amounted to a clear and impermissible attack on a decision of a court of competent
jurisdiction.
37. In response to the appellant’s assertion that counsel for the bank had acknowledged in
the summary proceedings that the appellant could advance any claim he wished in the
herein proceedings, the bank contends that all counsel did, in the context of addressing
an attempt by the appellant to stave off summary judgment by linking the summary
proceedings to the plenary proceedings, was to state that if the summary proceedings
proceeded, the appellant would still be entitled to pursue his plenary claim and that this
statement of counsel in 2015 cannot be construed as a waiver of any legal defence open
to the bank to the plenary claim. The bank notes that no statement of claim in final form
had yet been served.
38. The bank submits that even if comments as alleged by the appellant had been made
(which was not accepted) to the effect that issues raised in the statement of claim are the
very issues that the bank’s counsel acknowledged could be pursued by the appellant,
legal principles applicable cannot be by-passed. It relies on the Supreme Court decision in
Grealish v Murphy [2009] 3 IR 366 where it was held that the clear written representation
from the defendant insurance company that following certain steps being taken, an offer
of settlement would be made, amounted to an implied representation giving rise to an
equitable estoppel precluding the defendant from relying upon the Statute of Limitations.
The bank submits that the representation relied upon in Grealish is distinguishable from
the conduct alleged in the current case, contending that the latter could never amount to
a representation that no objection would be taken to those issues if they were in fact
pursued or that the defence of any such issues would not be materially altered by the
outcome of the bank’s application for summary judgment.
39. The appellant contented that other issues outstanding included that the bank had made
repeated requests of the appellant to withhold issuing the herein proceedings on the
assurance that it was conducting an investigation into the conduct of Mr. Furey. In
respect of that contention, the bank observes that this line of argument is not precluded
by the order of O’Regan J. who permitted the appellant to advance his claim of negligence
against the bank in relation to its investigation of Mr. Furey, making an appeal on this
point moot.
40. It posits that even if the appellant did not articulate his “vicarious liability” argument with
sufficient clarity before Hedigan J., he is in any event bound by the principles of
Henderson v Henderson as so determined by O’Regan J. In this regard, the bank relies on
the decision of this Court in Small v The Governor and Company of the Bank of Ireland
[2018] IECA 393 at para. 71: -
“The operation of the rule in Henderson v. Henderson in this jurisdiction means that
where a litigant seeks to bring a claim in legal proceedings which could readily, and
Page 10 ⇓
in all the circumstances, should have been brought forward in previous litigation
but was not the court will closely scrutinize such conduct.”
41. The bank submits that the series of reasons advanced by the appellant as to why the
thread of jurisprudence reflected in Henderson v Henderson should be regarded as not
applying to his case or, in the alternative, should be regarded as falling within
“exceptional circumstances” which would justify the court exercising its discretion to
permit the appellant to pursue the grounds which have been struck out, are spurious and
would not legally serve either purpose.
42. It contends that the argument based on the assertion that these are not successive
proceedings is pedantic as the appellant raised all of the same arguments in defence to
the summary proceedings that he now seeks to raise as plaintiff in these proceedings;
reliance on the summary proceedings being second in time is also meaningless as what is
relevant is the first set of proceedings to be heard and determined.
43. The bank argues that while Hedigan J. did not rule that the appellant would be entitled to
pursue his plenary proceeding, he equally did not rule that the bank was not entitled to
defend those proceedings or that it would not have to comply with all applicable rules of
law and procedure. It is not now open to the appellant to speculate as to what matters
influenced Hedigan J. when he refused to allow the appellant join Mr. Furey to the
summary proceedings as a third party.
44. With regard to Mr. Walshe’s affidavit, it was submitted that it was a matter for the trial
judge to afford appropriate weight to the evidence before her – particularly in
circumstances where serious issue was taken by counsel for the bank with much of the
content of Mr. Walshe’s affidavit, to which no response was offered by counsel for the
appellant in reply during the plenary proceedings hearing.
Discussion and Determination
45. At the outset it is to be observed that the argument that plenary proceedings having been
instituted first in time were not amenable to the rule in Henderson v Henderson by virtue
of that fact is wholly misconceived and nihil ad rem.
Ground 1 - Issue estoppel – res judicata
46. Hilary Biehler, Declan McGrath and Emily Egan in Delany and McGrath on Civil Procedure
in the Superior Courts (4th Ed., 2018) observe at para. 16-74: -
“There has also been a notable tendency for the courts to channel the pressures for
the abandonment of the strictures of issue estoppel, notably that of mutuality, into
the development and application of the doctrine of abuse of process. The doctrine
has…been invoked in a number of cases where it has been shown that an identical
question has already been decided by a court of competent jurisdiction even though
an identity of parties cannot be established.”
The test as to whether or not issue estoppel arises is set out in the decision of McCauley
v McDermott [1997] 2 ILRM 486 wherein Keane J. observed in that case: -
Page 11 ⇓
“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….’”
The judgment continues that what must be determined is whether the plaintiff 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 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.’
…As Gannon J. pointed out in Donohoe v. Browne [at p. 99]:
Page 12 ⇓
‘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.’”
Keane J. continued: -
“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.”
47. As was observed by Lord Keith in Arnold v National Westminster Bank Plc. [1991] 2 AC
93: -
“Issue estoppel may arise where a particular issue forming a necessary ingredient
in a cause of action has been litigated and decided and in subsequent proceedings
between the same parties involving a different cause of action to which the same
issue is relevant one of the parties seeks to re-open that issue.”
Whether the seventh defendant was guilty of negligence, breach of duty,
misrepresentation or matters which fall to be determined in the within proceedings, these
issues did not form a necessary ingredient in the summary proceedings which the bank
litigated to judgment and which the appellant, contrary to the initial state of the
statement of claim delivered, does not seek to re-open nor could he in circumstances
where any such claim would amount demonstrably to a collateral attack on the summary
judgment which the bank holds.
48. As this Court noted in Small v The Governor and Company of Bank of Ireland at paras.
60-61: -
“It is now generally accepted, based on the dictum of Lord Keith that, in relation to
issues not determined in the earlier litigation, Henderson v. Henderson offers:
‘…the possibility that cause of action estoppel may not apply in its full rigour
where the earlier decision did not in terms decide, because they were not
raised, points which might have been vital to the existence or non-existence
of a cause of action.’” (p. 105)
The Court continues –
Page 13 ⇓
“The judgment of Lord Keith suggests that where the first decision has determined
the relevant point the result will differ as between cause of action estoppel and
issue estoppel:
‘… there is room for the view that the underlying principles upon which
estoppel is based, public policy and justice, have greater force in cause of
action estoppel, the subject matter of the two proceedings being identical,
than they do in issue estoppel where the subject matter is different.’” (p.
108)
Whilst it appeared to have been argued before the High Court (transcript at p. 85) that
cause of action estoppel and issue estoppel are effectively interchangeable, that does not
appear to be a correct characterisation of those principles. In the context of issue
estoppel the principle extends to a state of affairs where, notwithstanding that the cause
of action is not the same in the later action to come to trial as it was in the earlier one,
some issue which is necessarily common to both was litigated to a conclusion at the
earlier hearing and is thus binding upon the parties. The principle is said to derive from
the decision in Duchess of Kingston’s Case (1776) 20 St. Tr. 355. Lord Sumption in Virgin
Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd)
[2014] AC 160 states at para. 17: -
‘“Issue estoppel’ was the expression devised to describe this principle by Higgins J
in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and
adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198.”
Lord Sumption considered that “cause of action estoppel…is properly described as a form
of estoppel precluding a party from challenging the same cause of action in subsequent
proceedings.”
Application of Carl Zeiss Stiftung principles to facts
(i) That the same question has been decided in the earlier proceedings
49. Hedigan J. had noted in the summary proceedings that one of the grounds on which the
appellant, who was a defendant in the said proceedings, sought leave to defend the
bank’s claim for summary judgment was the alleged “existence of a conflict of interest
between the bank official with whom the defendant dealt was, in fact, a so-called ‘silent
partner’ in the property investments in properties adjoining the defendant’s restaurant in
Malahide in 2005.” Hedigan J. observed: -
“The defendant’s application for finance…were all in his own name. No reference
was made to a partnership involving his son and Mr. Furey the bank official…The
defendant did not make complaint of Mr. Furey’s role in the partnership until
February 2010, 23 months after the partnership allegedly broke up. Until then, the
bank had no knowledge of the alleged role of Mr. Furey as partner in the
defendant’s property venture. It is agreed that if his account of Mr. Furey’s role in
this partnership is true, then Mr. Furey was acting in an improper manner
inconsistent and in conflict with his role as a bank official. This situation would have
been apparent to the defendant as an experienced businessman and previous
Page 14 ⇓
borrower with the bank. He however chose to remain silent and did not inform the
bank until February 2010 of the behaviour he alleges against Mr. Furey. It is clear
that throughout all these dealings the defendant had the assistance of his solicitor
because he witnessed all but one of the mortgages of the eleven secured properties
the exception being one dated on the 9th January 2004 which was witnessed by a
trainee solicitor. He could have asked his advice at any time as to the role of Mr.
Furey and his apparent conflicted relationship with his employer. On the presented
facts the defendant was well aware of the alleged improper role of Mr. Furey. He
chose to remain silent. When he did inform the bank of the alleged behaviour of its
official, they inaugurated disciplinary proceedings. These concluded when Mr. Furey
who denied any wrongdoing became ill and left the bank. The conflict, if any, was
between Mr. Furey and his employer the bank. No conflict existed between the
bank and the defendant. If the defendant’s account of events is true, then his
conduct does him no credit as he participated in that official’s clearly improper
conduct. In any event it does not release him from his obligation to repay the sums
he borrowed and which he undertook solely to repay. No bona fide defence is
revealed under this heading.”
50. The limitations of the decision of Hedigan J. in the summary proceedings must be borne
in mind. It pertained to an application for summary judgment against the appellant in the
sum of € 7,027,149.77. Mr. Furey, the bank official against whom allegations are being
advanced in these proceedings, was not a party to the said proceedings. The allegations
contended for insofar as they concerned Mr. Furey in the summary proceedings was that
he was a bank official who had a conflict of interest between his obligations to the bank
on the one hand and his obligations within the partnership on the other.
51. By contrast in the within proceedings, a materially different claim is being advanced,
which in its current iteration primarily is a suit in damages. The claim sounds in damages
for, inter alia, misrepresentation, negligence, breach of agreement and breach of duty.
52. In circumstances where the appellant has now withdrawn all pleas amounting to a
collateral attack on the summary judgment, no aspect of the extant pleadings trenches
upon or seeks to undermine collaterally the legal effect of the judgment delivered on the
16th October, 2015 and consequent orders. Accordingly, I am satisfied that that the
questions to be determined in the plenary proceedings have not been decided in the
earlier summary proceedings.
(ii) 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
53. In the summary proceedings brought by the second and third named respondents as
plaintiffs against the appellant as defendant it is necessary to recall in the first instance
that the first, fourth, fifth, sixth and seventh respondents were not parties to the said
litigation.
54. The parties to the judicial decision in the plenary proceedings or their privies are not the
same persons as the parties to the summary proceedings in respect of which the estoppel
Page 15 ⇓
is raised. Neither can the appellant fairly be characterised as seeking to relitigate an issue
which was conclusively and finally determined against him.
Ground 2 – Rule in Henderson v Henderson
55. The appellant contended that the trial judge erred in determining that the issue of
vicarious liability had been raised in the summary proceedings wherein Hedigan J.
delivered judgment on the 16th October, 2015. It was further and separately contended
that the trial judge in exercising her discretion under the rule in Henderson v Henderson
failed to give any adequate weight to the representations made in open court by counsel
for the bank in the summary proceedings to the effect that the appellant could advance
any claim he wished in the plenary proceedings.
56. The rule in Henderson v Henderson as the principle originally formulated by Wigram VC in
Henderson v Henderson (1843) 3 Hare 100, 115 is known, precludes a party from raising
in subsequent litigation matters which were not, but could and should, have been raised
in earlier litigation. Henderson v Henderson is but one aspect of the multi-faceted doctrine
of res judicata. It is authority for the general proposition that parties must normally
advance the totality of their claim in the first tranche of litigation. Save in exceptional
circumstances it is not open to them to bring forward a point which should have been
raised in the first litigation and which could have been so raised with the exercise of
reasonable diligence.
57. In Arnold v National Westminster Bank Plc. Lord Keith drew a distinction between cause of
action estoppel and issue estoppel observing at p. 104: -
“Cause of action estoppel arises where the cause of action in the later proceedings
is identical to that in the earlier proceedings, the latter having been between the
same parties or their privies and having involved the same subject matter. In such
a case the bar is absolute in relation to all points decided unless fraud or collusion
is alleged, such as to justify setting aside the earlier judgment.”
58. It is now well settled in this jurisdiction that the principle in Henderson applies both to the
law governing abuse of process as well as the doctrine of res judicata. The issue was
comprehensively analysed by Lord Sumption in Virgin Atlantic. Of particular relevance is
para. 26 of that judgment where he stated: -
“… Where the existence or non-existence of a cause of action has been decided in
earlier proceedings, to allow a direct challenge to the outcome, even in changed
circumstances and with material not available before, offends the core policy
against the re-litigation of identical claims.”
59. A key issue for determination then in light of the above dictum is the extent to which, if at
all, the claims of the appellant as duly modified, and having regard to claims abandoned
could be said as of the date of hearing of the motion before the High Court to amount to a
direct challenge to the outcome of the judgment and orders of Hedigan J. The said
judgment and orders were not the subject of any appeal. Therefore, no claim that can
Page 16 ⇓
undermine same or could be characterised as a collateral attack on the said judgment and
orders can be allowed to proceed in these proceedings.
60. Care must be exercised not to ascribe extravagant consequences to the carefully qualified
adumbrations of Lord Sumption where in Virgin Atlantic he considers the Arnold decision
and whether the doctrine of issue estoppel bars the raising in subsequent proceedings of
points which were not raised in the earlier proceedings or were raised, but unsuccessfully.
At para. 22 of the judgment in Virgin Atlantic he observed: -
“Arnold is … authority for the following propositions:
(1) Cause of action estoppel is absolute in relation to all points which had to be and
were decided in order to establish the existence or non-existence of a cause of
action.
(2) Cause of action estoppel also bars the raising in subsequent proceedings of points
essential to the existence or non-existence of a cause of action which were not
decided because they were not raised in the earlier proceedings, if they could with
reasonable diligence and should in all the circumstances have been raised.
(3) Except in special circumstances where this would cause injustice, issue estoppel
bars the raising in subsequent proceedings of points which (i) were not raised in the
earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was
not raised, the bar will usually be absolute if it could with reasonable diligence and
should in all the circumstances have been raised.”
In my view, in light of the authorities cause of action estoppel does not operate against
the appellant in the instant case since the claim is not identical to that in the earlier
proceedings, neither is it between the same parties or their privies; neither does it involve
the same subject matter in substance.
Ground 3 - representations of counsel for the bank in the summary proceedings
61. One ground of appeal concerns representations made by counsel for the bank at the
hearing of the summary proceedings before Mr. Justice Hedigan in the High Court in
2015. The issue of the applicability of the rule in Henderson v Henderson in such
Dunne J., referring to the decision of McKechnie J. in the High Court, stated: -
“McKechnie J. concluded that the grounds of challenge set out in the notice of
motion before him could have been raised at an earlier point in the proceedings and
if they had been so raised would almost certainly have been determined as was the
issue of domicile. However he exercised a jurisdiction having regard to the
importance of the issue raised to determine the issue. He noted in so doing and I
quoted:
‘Furthermore and this point is of considerable significance, is the fact that
counsel on behalf of [Mr. L.], having taken express instructions, gave an
Page 17 ⇓
undertaking to this Court that no further issue or new ground of challenge
would be raised by him, once the present matters were finally determined.
On this basis, and for these reasons, I propose to entertain the present
application of the respondent, despite some hardship which undoubtedly this
conclusion may cause the applicant.’”
62. It is not reasonable for the appellant to characterise the conduct of counsel for the bank
at the hearing of the summary proceedings as amounting to a concession that “the
appellant could make whatever case he wanted against the bank in his plenary
proceedings”.
63. It is clear that at most said counsel acknowledged what was a fact, namely that it was
open to the appellant to raise matters and issues in the subsequent pending litigation
which of course was in being but had not been prosecuted with any degree of expedition.
Nothing stated by their counsel operates as a waiver of any legal defence open to the
bank in the plenary proceedings.
Ground 4 -Affidavit evidence of Des Walshe
64. In the instant case, the deponent Mr. Walshe is characterised as a banking consultant by
profession in his affidavit. He describes himself as an advisor “with experience in the
practice, operation and functioning of banks generally as lending institutions both within
and outside the State”. The affidavit thus has the status of an affidavit furnished by an
expert on behalf of the appellant.
65. There was a clear conflict between the affidavit evidence of the parties. No notice to
cross-examine was served on Mr. Walshe. His averments were not disputed on affidavit.
There were irreconcilable differences between the parties on matters of central
importance. Mr. Walshe’s averments remain uncontradicted save to the extent modified
by counsel for the appellant at the hearing in response to queries from the judge.
66. As the authors of Delany and McGrath succinctly observe at para. 21-100: -
“Where a conflict of evidence on affidavit arises, a court will not be in a position to
choose between the competing versions of the facts unless cross-examination on
the affidavits takes place or there is sufficient uncontradicted credible evidence
upon which the court can reach a decision. In circumstances where cross-
examination does not take place, a court is not obliged to accept evidence given on
affidavit if there is conflicting evidence given on affidavit or orally that the court
accepts. The effect of not cross- examining may be that the court resolves the
issues of fact against the party that bears the burden of proof but may not do so
where the application is interlocutory in nature so that the party is not required to
prove matters on a balance of probability.”
67. The approach of the bank in not filing an affidavit was characterised by the bank’s counsel
in the High Court at p. 67 of the transcript as follows: -
Page 18 ⇓
“Now in the commercial list proceedings Mr. Flanagan deposed that he instructed
Mr. Walshe in or around the 26th January 2010…The decision was taken not to
respond to these affidavits, they are what they are. In my respectful submission
they go nowhere and Mr. Flanagan doesn’t say anything that couldn’t perfectly
easily have [been] said explicitly and all of which he did more or less say implicitly
in the affidavits he filed on the motion for summary judgment. I think he didn’t use
the words undue influence but he used duress.”
68. It is stated at para. 23-228 of Delany and McGrath that: -
“The question of whether a different approach should be taken where disputed
findings of fact are based entirely on affidavit evidence and the exhibits thereto was
He expressed the view that:
‘Principles based on the superior ability of a judge to decide, as between live
witnesses, who is to be preferred in terms of credibility or of recollection
cannot apply with the same force where facts are merely deposed to on
affidavit. Apart from the gap between the experience of hearing and seeing a
person giving testimony and the recitation of facts on paper that affidavit
evidence represents, it must also be remembered that the gulf widens
through those words on paper being generally chosen by lawyers as a
reflection of what a witness wishes to say, as opposed to witnesses speaking
or writing the account themselves.’”
Charleton J. in his judgment observed that where a decision of the court was made based
on key findings of fact drawn from affidavit evidence –
“… The appellant must establish an error in those findings that is such as to render
the decision untenable.”
The authors further observed that –
“Charleton J reiterated that any party appealing a decision bears the burden of
demonstrating that the trial judge had been incorrect in relation to the findings of
fact which underpin the decision.”
The authors continue: -
“…it may need to be established on appeal that the decision reached cannot be
upheld because an essential conflict could not be resolved on the material which
was before the trial judge.”
69. However, in the instant case there was no cross-examination of the deponent Mr. Walshe
and no replying affidavit positing a competing version of the key events he had deposed
to. This was the bank’s motion and the burden of proof rested with them. To baldly
assert, without more, that the matters alleged in Mr. Walshe’s affidavit “go nowhere” at
Page 19 ⇓
best disputes the averments but fails to adequately contradict them. There was in fact no
conflicting evidence given either on affidavit or orally at the hearing of the motion which
the court was entitled to prefer over that of Mr. Walsh and which would have entitled the
trial judge to reach the conclusions which she did.
70. The appellant in his affidavit sworn in the summary proceedings had deposed to the
involvement of Mr. Walshe in negotiations with the bank, including in or around December
2013 and at para. 25 of his said affidavit the appellant had said that Mr. Walshe had been
involved as his adviser and had understood that the debt of the appellant would be
“permanently parked on a without prejudice basis in recognition of the conduct of Frank
Fury who is now the seventh named defendant in the proceedings but not a party to this
motion”. This contention had been dealt with by Hedigan J. in his judgment in the
summary proceedings and at para. 8 of his judgment in the said proceedings delivered on
the 16th October, 2015 in the High Court he rejected the claim of debt forgiveness as not
being made out on the evidence. That judgment and ensuing orders were not appealed
against.
71. The judgment of Hedigan J., however, was directed towards the summary judgment
being sought by bank only as against the appellant. In all the circumstances the
averments in the affidavit of Des Walshe did amount to “uncontradicted affidavit
evidence” of a material kind. The submissions of counsel alone did not contradict the key
averments and did not constitute a valid basis for the trial judge disregarding the said
affidavit.
72. I am satisfied that the uncontradicted averments in the affidavit of Mr. Walshe directed to
matters of central materiality and underpinning several key matters pleaded in the
statement of claim were not correctly dealt with by the trial judge and she failed to afford
appropriate weight to same and failed to have regard to the fact that the failure to
contradict its averments or cross-examine the said deponent resulted in the bank failing
to discharge the burden of proof in the context of the motion before her.
Conclusions
73. The particular issues that form the core claims in the plenary proceedings did not form a
necessary ingredient in the summary suit, neither could it be said that they were litigated
and decided upon in the said proceedings, such as would give rise to issue estoppel being
effectively raised against the appellant.
74. In my view, at issue in the instant case is issue estoppel rather than cause of action
estoppel since in circumstances where the appellant has abandoned specific pleas that in
substance amounted to a collateral attack on the original decision, that aspect of the
objection to the statement of claim falls away leaving outstanding the question of issue
estoppel. The rule in Henderson v Henderson has evolved so that it can be availed of to
strike down as an abuse of process litigation sought to be progressed after the conclusion
of an action even though the issues or the parties may not be identical as in the first suit,
or where the court never gave a judgment in the first case.
Page 20 ⇓
75. I am satisfied that there were adequate reasons advanced to the trial judge for why the
issues arising and sought to be prosecuted now in the within the plenary proceedings
were not agitated in the summary summons litigation. The appellant acknowledges that
the summary judgment and orders stand, they were not appealed against, and the within
proceedings cannot, nor do they in their current iteration, constitute a collateral attack on
the court orders which the bank holds.
76. Lord Bingham made clear in Johnson v Gore Wood that it would be wrong to hold that
because a matter could have been raised in earlier proceedings, it should have been so as
to render the raising of it in the subsequent litigation being brought to hearing necessarily
abusive. To take such a stance would be to adopt too dogmatic an approach. It will be
recalled that in Johnson v Gore Wood the House of Lords permitted the appellant to
proceed with an action in his own name against former solicitors notwithstanding that
such an action could have been brought at the same time as an earlier action against the
same firm by his company which suit had been compromised. The allegations of
negligence and breach of duty made against the solicitors by the company in the firstly
pursued action were said to be essentially the same as those on which the claimant was
relying in the second suit.
77. The public interest to be protected for those who resort to litigation and obtain a final and
conclusive determination of their disputes was considered by Finlay Geoghegan J. in Vico
Limited v Bank of Ireland [2016] IECA 273 where she characterised the principle derived
from Henderson v Henderson as follows: -
“The underlying principle is similar to that in res judicata namely the public interest
in those who resort to litigation obtaining a final and conclusive determination of
their disputes.”
78. I am satisfied that the trial judge erred in her determination of the issue of estoppel and
insofar as she characterised the decision of Johnson v Gore Wood as saying “that a
litigant is not to be unjustly hounded or unjustly harassed.” This does not adequately
reflect the nuanced ratio of the said judgment. It is clear that the cause of action as
identified in the current iteration of the statement of claim and with all elements as could
be construed as a collateral attack on the summary judgment does not offend the rule in
Henderson v Henderson and does not amount to an attempt to seek to re-argue in
substance the issues determined in the summary proceedings.
79. It is acknowledged by the appellant that the judgment of the High Court in the summary
proceedings stands, it has never been appealed, and the appellant does not seek to
impugn same or to have it in anywise interfered with. That a cause of action in damages
for misrepresentation and negligence against the bank has now been framed as well as
vicarious liability for the misrepresentations, negligence and breaches of duty of the
seventh named defendant is a wholly distinct matter.
Page 21 ⇓
Alleged denial of access to the courts
80. In the instant case it was suggested that the appellant in the circumstances of this case
suffered a denial of access to the courts. The said claim is not sustainable. However,
“Quite frequently one finds an argument made or a submission advanced that any
inhibition which restricts a full hearing is a denial of access to the court…This in my
view is to misunderstand what is truly meant by such phrase. A proper example of
this type of restriction is to be found in Macauley v Minister for Posts and
Telegraphs [1966] IR 345. In that case it will be recalled that Kenny J. decided that
the requirement to obtain the fiat of the Attorney General in order to bring an
action against a Minister of Government was a breach of the right of access. That is
an example of what is really meant by a denial of access. On the other hand the
principles and rules above mentioned cannot accurately or properly be described in
the same way. Decisions resulting therefrom are made within the administration of
justice rather than being external to it: such are and may be necessary to preserve
both the judicial process and litigation.”
81. Accordingly, I would allow the appeal and conclude as follows: -
(a) That the trial judge erred in dismissing the proceedings against the second, third,
fourth, fifth and sixth named respondents.
(b) With regard to the vicarious liability issue I am satisfied that it continues to be
maintainable. Without doubt, the statement of claim warrants careful overhaul by
any party who seeks to stand over it as the basis for the remedies it seeks,
particularly in regard to general damages. As counsel for the bank correctly
identified, vicarious liability does not of itself give rise to a cause of action. I am
satisfied however that the trial judge erred insofar as she considered that the
defence raised in the summary proceedings was “entirely” of a vicarious liability
character or that same had been the subject of a determination in the summary
proceedings so as to render the matter res judicata or subject to issue estoppel.
(c) The rule in Henderson v Henderson must not be applied in a rigid or technical
manner so as to deprive the court of any discretion to hold otherwise in an
appropriate case.
(d) It is significant that a draft of the statement of claim had been furnished to the
bank’s legal team prior to the hearing of the summary summons suit before the
High Court. Accordingly, the stance being adopted by the bank at that point was
based on a knowledge and understanding of the ambit of what was intended to be
claimed in the within plenary proceedings by the appellant.
(e) It will be for the appellant to establish at the trial of this action the close connection
criterion required and further it will be open to the appellant and the bank to
advance such arguments as they see fit including an evaluation of whether the
Page 22 ⇓
conduct complained of by Mr. Furey fell within or outside the scope of any
employment and whether in all the circumstances the first to sixth defendants or
any one or more of them is liable for any tort as may be established by the court to
have been committed by the seventh named defendant.
(f) The pleadings identify the claims and it will be a matter for the trial judge to
determine whether the evidence supports the allegations advanced in the draft
statement of claim.
Result: Allow appeal