Irish Court of Appeal

 

 

APPROVED

                             NO REDACTION REQUIRED

 

THE COURT OF APPEAL

 

Appeal Numbers: 2020/82

                                                                                                                                    2020/83

 

 

Donnelly J.                                                     Neutral Citation Number [2022] IECA 216

Faherty J.

Ní Raifeartaigh J.

 

 

 

BETWEEN/

 

JOHN O’CONNOR

 

PLAINTIFF/

APPELLANT

 

- AND -

 

 

LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY IRELAND AND THE ATTORNEY GENERAL

 

DEFENDANTS/

RESPONDENTS

 

 

 Judgment of Ms. Justice Faherty delivered on the 6^th day of October 2022

 

 

1.              These appeals concern various Orders made by the High Court (Twomey J.) on 20 February 2020 the first of which dismissed Mr. O’Connor’s (hereinafter “the plaintiff”) claims as against the second, third and fourth defendants (hereinafter “the State defendants”) in the within proceedings i.e. the proceedings bearing record number 2019/5432P, the second of which directed that all aspects of the within proceedings save the defamation aspect be consolidated with other proceedings instituted by the plaintiff and the third and fourth of which refused reliefs which the plaintiff had sought in motions filed on 2 July 2019 and 30 October 2019.

Background

2.               Over the course of 2018/2019, the plaintiff instituted three sets of plenary proceedings. The proceedings bear the record numbers 2018/4595P, 2019/5431P and 2019/5432P.   The Legal Aid Board (“the Board”) is a defendant in all three sets of proceedings.  It is, I believe, fair to say that all three sets of proceedings arise out of the plaintiff’s course of dealings with the Board over a number of years.

3.              In the 4595P proceedings (instituted on 22 May 2018), the plaintiff makes a claim for damages against the Board.  The general endorsement to the plenary summons pleads that the claim is for breach of contract, abuse of process, breach of statutory duty, breach of constitutional rights, breach of fiduciary duty, breach of statutory duty of care and negligence on the part of the Board. An appearance was entered to these proceedings on 6 June 2018.  The plaintiff delivered a statement of claim running to some 208 paragraphs and some 20,000 words on 4 December 2018. In summary, the statement of claim pleads as follows:

·         The Board was negligent in failing to provide legal advice and legal services prior to April 2016 in relation to professional negligence proceedings the plaintiff commenced in 2014 in the High Court.

·         The Board has acted in a wholly inappropriate and irrational manner in deciding to terminate two legal aid certificates ultimately granted to the plaintiff.

·         The plaintiff has been denied legal aid due to the Board’s negligent decision to terminate the two legal aid certificates and due to the Board’s wilful breach of a settlement agreement reached between the plaintiff and the Board following the institution of judicial review proceedings by the plaintiff.

·         By terminating the two legal aid certificates, the Board wilfully breached the plaintiff’s right to civil legal aid and his constitutional rights.

·         The Board wilfully breached the plaintiff’s contractual, statutory and constitutional rights to obtain legal services and legal representation in circumstances where the Board’s employees or agents have admitted to personal knowledge of the named defendants in the two High Court proceedings the plaintiff instituted in 2014 and have refused to fully disclose personal knowledge of the relationship between the Board’s employees and agents and the defendants in the 2014 High Court proceedings.

·         The Board has failed to avoid or appropriately manage issues of objective bias or conflict of interest over the past three years and so has been “grossly negligent”.   

A full defence was delivered by the Legal Aid Board on 29 January 2019.     

4.             On 2 July 2019 the plaintiff issued a notice of motion in the 4595P proceedings seeking to amend his statement of claim by way of additional paragraphs and he sought an order under O.12, r.8 of the Rules of the Superior Courts (“RSC”) striking out the Board’s appearance and defence and, if such order is granted, an order for summary hearing and determination of the 4595P proceedings based on the statement of claim.  Alternatively, he sought an order for the hearing of preliminary issues pursuant to Order 37, r.7 RSC.

5.             The 5431P proceedings against the Board and the State defendants issued on 9 July 2019.  In the general endorsement of claim to the plenary summons the plaintiff seeks certain declaratory reliefs and asserts that the Board committed certain wrongs, viz:

·         A declaration that the Board, its servants or agents have a statutory duty to make within a reasonable time a decision either to grant or refuse the plaintiff’s legal aid applications.

·         A declaration that the Board made decisions ultra vires, acted unlawfully or committed misfeasance in public office by its failure to consider and decide the plaintiff’s application for legal aid in respect of the High Court proceedings the plaintiff instituted in 2018 bearing record no. 2018/4595P and was negligent and breached its fiduciary duty and duty of care to the plaintiff  by closing its legal aid file in respect of the plaintiff’s application for legal aid for the 4595P proceedings in April 2019 without having made a decision on the application and in requesting the plaintiff to make a new application for legal aid.

·         A declaration that the plaintiff’s complaint in October 2018 about the Board’s delay in providing the plaintiff with legal aid in respect of certain family law proceedings was valid and appropriate.

·         A declaration that the plaintiff’s statutory, constitutional and/or European Convention on Human Rights (“ECHR”) rights were breached by virtue of the Board’s refusal to provide him with legal aid granted to him by way of certificate for legal aid in respect of certain family law proceedings and the failure of the Board to progress the family law proceedings based on legal steps specified in a written legal opinion obtained in support of the legal aid application.

·         A declaration that the Board, its servants or agents, unlawfully denied the plaintiff’s statutory rights to legal aid under the Legal Aid Act 1995 (“the 1995 Act”) and so breached the plaintiff’s constitutional rights and his Art. 6 and Art. 8 rights pursuant to ECHR.

·         The Board was negligent and/or breached its duty of care or fiduciary duty when, acting as the plaintiff’s appointed agent pursuant to a certificate of legal aid, it refused to make applications in family law proceedings based on the plaintiff’s instructions and when it withdrew its services in October 2018 for invalid reasons and without providing an alternative legal service to the plaintiff.

·         The Board engaged in an abuse of process by terminating in December 2018 a legal aid certificate previously granted to the plaintiff, which constituted a collateral attack on the prior decision of the Board to grant this legal aid certificate.

·         The Board committed misfeasance in public office due to deliberately and dishonestly abusing the powers conferred on it under the 1995 Act and the Regulations made thereunder by deciding to terminate the plaintiff’s legal aid certificate in family law proceedings for grounds or reasons that were an abuse of process.

6.             At paras. 10 and 11 of the general endorsement of claim, the plaintiff pleads that the State defendants bear vicarious liability for the wrongful acts of the Board, its servants or agents,  in particular the “[v]icarious liability of [the] second named Defendant” by virtue of sections 3, 4, 6, 7, 9, 10, 11, 19, 20, 21, 28, 29, 30, 33, 36, 37 and 38  of the 1995 Act for the alleged wrongful acts of the Board. At para. 12, the plaintiff seeks a declaration that all the defendants have a duty under the Human Rights Act 2003 (“the 2003 Act”), in particular s. 3 thereof, to protect citizens’ ECHR rights and that the defendants failed to protect the plaintiff’s ECHR rights and thus are liable in damages.  As of the date of the hearing of the motions which gave rise to the Orders under appeal here, no statement of claim had been delivered in respect of these proceedings.

7.             The 5432P proceedings issued on 9 July 2019 against the Board and the State defendants. In the general endorsement of claim to the plenary summons the plaintiff pleads defamation of him by the Board, its servants or agents. He seeks a declaration that the Board, acting as his appointed legal representative under a grant of legal aid certificates, published defamatory statements and/or false statements in relation to the plaintiff. He seeks a declaration that the defamatory statements and/or false statements made by the Board “were published, and relied upon, without appropriate challenge, verification corroboration, or correction” and “so constitute a serious infringement of the Plaintiff’s constitutional rights…and a serious infringement of the Plaintiff’s inherent rights to fair procedures and fair process by [the Board]”.  He also seeks a declaration that the Board, its servants or agents, denied the statutory rights afforded to the plaintiff under the 1995 Act which rights protect the plaintiff’s constitutional rights and his rights under the ECHR, in particular Art. 6 and Art. 8.  At paras. 7 and 8 of the general endorsement of claim, the plaintiff pleads that the State defendants bear vicarious liability for the wrongful acts or omissions of the Board, its servants or agents,  in particular the “[v]icarious liability of [the] second named Defendant” by virtue of sections 3, 4, 6, 7, 9, 10, 11, 19, 20, 21, 28, 29, 30, 33, 36, 37 and 38  of the 1995 Act for the alleged wrongful acts of the Board.  At para. 9, the plaintiff seeks a declaration that all the defendants have a duty under the 2003 Act, in particular s.3 thereof, to protect citizens’ ECHR rights and that the defendants failed to protect the plaintiff’s ECHR rights and, thus, are liable in damages. 

8.             The claim for damages for defamation is said to arise from an internal memorandum of the Board where the plaintiff is referred to inter alia as “behaving unreasonably”.  The background to that memorandum, in summary, is as follows: In May 2015, the plaintiff applied to the Board for two legal aid certificates in respect of two sets of High Court proceedings bearing, respectively the record numbers 2014/6262P and 2014/6263P instituted by him in 2014. They were each professional negligence proceedings. The plaintiff was refused legal aid on 1 December 2015 and again in March 2016 following a review.  In 2016, by way of judicial review proceedings bearing record number 2016/243JR, the plaintiff sought judicial review of the refusal decisions.  The judicial review proceedings were compromised on 9 February 2017 when the Board agreed to re-consider the plaintiff’s May 2015 applications for legal aid, the two earlier refusals of legal aid having been quashed by the High Court on consent.

9.             On 20 December 2017, the 2014 High Court proceedings in respect of which the plaintiff had sought legal aid were the subject of a judgment of the High Court (Keane J.) ([2017] IEHC 781) wherein Keane J. refused the defendants’ motion to dismiss the proceedings on the basis that the plaintiff had failed to obtain an expert report prior to issuing the proceedings.

10.           On 23 May 2017, by way of judicial review proceedings bearing record number 2017/426JR, the plaintiff sought and obtained leave for judicial review of the alleged failure of the Board to abide by the earlier 2016 settlement whereby it had agreed to process the plaintiff’s May 2015 applications for legal aid. 

11.          These judicial review proceedings were compromised in March 2018 following which the Board granted the plaintiff two certificates for legal aid. 

12.         On 27 July 2018, the solicitor assigned to the plaintiff by the Board wrote to the plaintiff inferring that the 20 December 2017 judgment of Keane J. had stated that the plaintiff had engaged in an abuse of process and that he was required to obtain professional opinions in order to maintain his July 2014 professional negligence proceedings.

13.         On 30 July 2018, the plaintiff wrote to the solicitor alleging that the contents of the 27 July 2018 letter were defamatory of him on the basis that there had been no determination by Keane J. that the plaintiff had engaged in an abuse of process and that there was no requirement on him to obtain supporting opinions for his 2014 professional negligence claims.

14.         On 12 September 2018, the Board advised the plaintiff of its intention to terminate the two legal aid certificates that had issued in March 2018.  This was confirmed by the Board on 24 September 2018 and was said to be based on the plaintiff’s refusal to obtain two expert opinions for his two 2014 professional negligence claims. It is the foregoing events that have triggered the 5432P proceedings.

15.         An appearance was entered by the Board to the 5432P proceedings on 3 September 2019 and the State defendants’ appearance was entered on 10 September 2019. 

16.         The plaintiff delivered a statement of claim on 29 July 2019 running to in excess of 9,000 words.  As with the statement of claim in the 4595P proceedings, the statement of claim in the 5432P proceedings recites in exhaustive detail the plaintiff’s interactions with the Board from 2015 onwards.

17.         At paras. 7 and 8, he recites the duties of the second named defendant (“the Minister”) under the 1995 Act. At para. 9, reference is made to award of damages made against the State by the European Court of Human Rights (“ECtHR”) in McFarlane v. Ireland [2010] ECHR 1272 for delay in criminal court proceedings and to O’Donoghue v. Legal Aid Board [2004] IEHC 413 where the High Court awarded damages for a 25-month delay in the provision of legal aid to the plaintiff in that case.

18.         At paras. 10-14, the plaintiff refers to correspondence he entered into with the Minister requesting that the Minister investigate his complaints (including the alleged defamatory statements by the Board and his claim of objective bias) in relation to the Board and references correspondence from the Minister to the effect that the Minister was precluded by the provisions of the 1995 Act from intervening in relation to the plaintiff’s complaints. The plaintiff pleads that the State defendants failed in their duties of oversight and supervision of the Board as required under the provisions of the 1995 Act and it is pleaded that the third defendant (Ireland) as “the employer of the Board, the Minister, and the Department of Justice staff with oversight of the Board, and so the third named Defendant has vicarious liability for the collective Defendants, their wrongful acts and omissions, such as a failure to exercise oversight duties…”

19.         At para. 58-86, the plaintiff pleads, inter alia, that the natural and ordinary meaning of the words quoted in the Board’s letter of 27 July 2018 were defamatory in the manner alleged by the plaintiff at para. 58 (a)-(f) and similarly pleads at para. 61 that a submission of the Board dated 27 August 2018 was defamatory of him for the purposes of the Defamation Act 2009 Act (“the 2009 Act”) as it bore the imputations the plaintiff sets out at (a)-(i) of para. 61. Paras. 58-86 also contain details of the Plaintiff’s alleged negligence and breach of contract on the part of the Board in and about their dealings with the plaintiff.

20.          At paras. 87-91, the plaintiff pleads inter alia that the “repeated, intentional, and wilful nature of the publication of the alleged defamatory statements…and the failure to consider the explicit challenges raised by the plaintiff in regard to the truth and accuracy of the alleged defamatory statements prior to publication, and the failure by the Board, its servants or agents, to make any effort to validate, verify or correct the accuracy of the defamatory statements…represent a serious breach of the Plaintiff’s rights protected under [the ECHR]”.

21.         On 29 July 2019, the plaintiff filed a notice of motion in the 5432P proceedings seeking judgment against the Board due to their alleged default in entering an appearance in accordance with Order 12 RSC.  Alternatively, he sought a hearing pursuant to s.14(1) of the 2009 Act on the issue of whether the statement identified in the plaintiff’s statement of claim was reasonably capable of bearing the imputation pleaded by the plaintiff.

22.          On 30 October 2019, the plaintiff issued a motion in the 5432P proceedings seeking judgment in default of defence against the defendants together with an order for a hearing to assess damages for defamation by trial with a jury as provided for in s.31 of the 2009 Act and O.27, r.8(2) RSC.  The motion was grounded on the plaintiff’s affidavit sworn 30 October 2019.   

The defendants’ motions

23.         The defendants’ motions which led to two of the Orders the subject matter of the within appeals were brought in the 5432P proceedings.

24.         By notice of motion dated 7 November 2019, the State defendants sought an order pursuant to Order 19, r.28 RSC dismissing the plaintiff’s claim against them in the 5432P proceedings on the grounds that they disclosed no reasonable cause of action against the State defendants, were frivolous or vexatious and/or bound to fail or were an abuse of process (hereinafter “the motion to dismiss”).  The motion was grounded on the affidavit of Kate Rosingrave of the Office of the CSSO, sworn 17 November 2019.  Therein she avers that the State defendants could not be liable for the alleged wrongs committed by the Board on the ground that the Minister was precluded from exercising any power or control in relation to any particular case with which the Board was or might be associated.  On that basis, Ms. Rosingrave claimed that the 5432P proceedings must be regarded as vexatious and/or an abuse of process and that they disclosed no reasonable cause of action against the State defendants.

25.         On 18 November 2019, the Board filed a motion pursuant to Order 49, r.6 RSC in the 5432P proceedings seeking the consolidation of those proceedings with the 5431P proceedings and the 5495P proceedings.  It also sought an order striking out the statements of claim in the 5432P and 5495P proceedings for being unnecessary, embarrassing and prolix and sought directions as to further pleadings.  This motion will be hereinafter referred to as “the consolidation motion”. The motion was grounded on an affidavit sworn 15 November 2019 by Pat McInerney, the solicitor retained by the Board. 

26.         At para. 5, Mr. McInerney avers that “all three cases herein appear to relate to grievances that the Plaintiff has arising out [of] his dealings with the Legal Aid Board.  I say and believe that there is or is very likely to be very significant overlap between the three sets of proceedings and that they are ultimately based on the same circumstances. I say and believe and am advised that it is entirely suitable, convenient and appropriate to have the three cases consolidated and heard together.  I say and believe and am advised that in addition, it would lead to a very significant saving of costs for all parties to have all matters determined in one case as opposed to three separate cases”.

27.         At para. 6, he adverts to the fact that the statements of claim delivered in the 4595P and the 5432P proceedings “run to in excess of 50 pages of dense text/several hundred paragraphs and very significantly in excess of 10,000 words”.  He describes the pleadings as “unnecessary, embarrassing and prolix” and avers that they do not conform to the pleading requirements provided for in Order 19, r.3 RSC.  He further avers:

“In order to permit the first Defendant and the Court to understand the gravamen of the Plaintiff’s cases, I say it is necessary for the Plaintiff to deliver an amended consolidated Statement of Claim in conformity with the requirements of the rules of this Honourable Court.”

28.         On 12 November 2019, (some three days after they issued and served the motion to dismiss), the State defendants delivered their defence in the 5432P proceedings, pleading, inter alia, that the allegations against them were “without merit, wholly unsustainable and do not constitute or disclose a cause of action against [them]”. 

29.          In a detailed replying affidavit sworn on 20 December 2019 in response to the motion to dismiss which runs to some 71 paragraphs, the plaintiff describes, at para. 28, the State defendants’ denial of vicarious liability “as an argument wholly without merit” averring that if the court were to grant the application to strike out the proceedings “that would result in fundamentally altering the current nature of vicarious liability for Irish State parties for public or statutory bodies”.  He avers that as the staff of the Board are employed by the State defendants, the State defendants can be held vicariously liable for wrongs committed by the Board staff in the course of their employment.  He further asserts that there is no valid legal basis to support the claim for the broad immunity asserted by the State defendants.

30.         At para. 46, he avers that the claims he has made against the Board in the proceedings “raises serious questions about the Board’s ability to fairly and transparently operate the Statutory Appeals process, given the alleged defamatory statements relied upon to decide two legal aid certificates during September 2018 and to [refuse] my appeals of these two Board decisions around February 2019.”

31.         The plaintiff’s replying affidavit to the Board’s consolidation motion was also sworn on 20 December 2019. At para. 6, he disputes the assertion that the length of the statements of claim in the 4595P and 5432P proceedings are valid grounds upon which to request consolidation or a basis upon which to strike out the 4595P proceedings.  He avers that it was necessary for the various proceedings to be detailed given the long history of dispute between him and the Board, and to ground his claim for alleged breach of fiduciary duty and statutory duty and breach of his constitutional and ECHR rights.  At para. 8, he avers that if the court were to grant the application to consolidate the 5432P proceedings with the 4595P proceedings that would require the court having to invalidate, or strike out, the current 4595P statement of claim, the 4595P defence, and the motion which the plaintiff issued on 2 July 2019 in the 4595P proceedings seeking to strike out the Legal Aid Board’s defence.  At para. 9, the plaintiff disputes the assertion that the 4595P, 5432P and 5431P proceedings relate to the same circumstances or facts.

32.          On 6 January 2020, the plaintiff filed a notice in the 5432P proceedings to cross-examine Ms. Rosingrave and Mr. McInerney on their respective affidavits.  On 24 January, he filed a notice in the 4595P proceedings to admit documents.

The High Court judgment

33.         The various motions brought by the parties came on for hearing on 19 and 20 February 2020.  In an ex tempore judgment delivered on 20 February 2020, Twomey J. granted the relief sought by the State defendants and dismissed the 5432P proceedings against the State defendants on the grounds that they disclosed no reasonable cause of action.  With regard to the plaintiff’s  claim for declaratory relief and damages against the State defendants on the basis that they were vicariously liable for the alleged wrongs of the Board, the Judge stated that it was important to note that in making the application the State defendants were not claiming that the Board was not liable for the various claims of defamation and damage made by the plaintiff; rather the State defendants’ point was that they were not vicariously liable for any such liability on behalf of the Board.  He went on to state:

“It seems to this Court that the deciding factors in this matter are that, firstly, under section 3 and section 7(3) of the Civil Legal Aid Act 1995 the Legal Aid Board in a body corporate with perpetual succession and capable of being sued, capable of suing and being sued and, crucially, that the Minister has no control in relation to any particular area or case with which the Board is concerned.  Secondly, if the order were to be granted, Mr. O’Connor would still be entitled to recover in full from the Legal Aid Board and that therefore he would not be prejudiced by any such order.  And thirdly, that it is clear from McSorley v. O’Mahoney that proceedings should be struck out if they confirm (sic) no gain on the plaintiff.  And this appears to be such a case, since Mr. O’Connor has, in effect, a State body to sue - the Legal Aid Board - and does not need to have three other State defendants which can only result in greater cost to the taxpayer in defending, effectively on the double those proceedings. 

On this basis, the Court concludes that Mr. O’Connor has no reasonable cause of action against the State defendants, whatever about the Legal Aid Board, and so these proceedings against these parties should be dismissed.”

34.         The State defendants were duly awarded their costs.  The Judge refused the plaintiff’s application for a stay. 

35.         The Judge did not strike out the claims against the State defendants in the 5431P proceedings in the absence of any statement of claim in those proceedings having been delivered.

36.         After dealing with the motion to dismiss, Twomey J. went on to address the Board’s consolidation motion. Having heard submissions from counsel for the Board and from the plaintiff, the Judge was satisfied that there was merit in consolidating the three sets of proceedings save the defamation aspect of the 5432P proceedings, the Judge accepting the plaintiff’s argument regarding his entitlement to a trial by jury in relation to his defamation claim, which counsel for the Board acknowledged was the case.

37.         In respect of the consolidation of the other claims the Judge was satisfied that common questions were being dealt with which all arose out of the same factual situation.  He was satisfied that there would be substantial savings in relation to time and he agreed that if the matters were heard separately by separate judges there was a likelihood of some confusion in relation to the matters.  Accordingly, the Judge considered that “the best way forward, is that the defamation action effectively be taken out from it and the other matters be dealt with in one consolidated set of proceedings”.  Thus, the non-defamation aspect of the 5432P proceedings, together with the 5431P proceedings, were to be consolidated into one consolidated set of proceedings, namely the 4595P proceedings. 

38.         Noting that in the statements of claim already delivered in the 4595P and 5432P proceedings ran, respectively, to 20,000 and 10,000 words, the Judge directed that the now-to-be reconstituted statement of claim in the 5432P defamation proceedings and the statement of claim in the newly consolidated 4595P proceedings were each to be limited to 5,000 words.

39.         The Judge then turned to the plaintiff’s motions. He did not accede to the plaintiff’s application to have certain matters heard by way of trial of a preliminary issue, finding that the requirements for a trial in relation to a preliminary issue were not met here, in the absence of either agreed facts or any discrete or identifiable point of law.  The Judge also refused the plaintiff’s application to have the Board’s appearance in the 4595P proceedings struck out or summary judgment granted on foot of his statement of claim, finding that albeit the plaintiff’s motions had issued first in time, that did not necessarily give them priority.  According to Twomey J., he had dealt with all of the motions “in the round”.  He stated:

“[The Court] has considered all the claims and motions made by the parties, it has reached a conclusion that quite apart from the State parties being removed, that it also makes sense to consolidate the actions.” 

The Judge went on to state that one of the reasons for the consolidation was “in the interest of saving court time and therefore taxpayers’ money”.  He found nothing untoward the approach adopted by the Board towards the plaintiff’s motions.

40.         With regard to costs, the Judge made no order for costs in relation to the plaintiff’s unsuccessful motion to strike out the Board’s appearance or his motion for judgment in default of defence.  Nor did he make a costs order against the plaintiff in relation to the consolidation motion given the plaintiff’s success in resisting the application to have his defamation claim consolidated.  However, costs were awarded to the Board in respect of the plaintiff’s non-success in seeking a trial of a preliminary issue. 

 The appeal against the dismissal order

41.          The plaintiff filed a detailed notice of appeal against the dismissal order by way of a 58-paragraph affidavit.  Based on the contents of that affidavit, and the plaintiff’s written and oral submissions, I consider the following to be the principal arguments he advances.

·                As the Judge granted the application to dismiss on the grounds only that the 5432P proceedings disclosed “no reasonable cause of action against the State defendants…” it must be taken that the State defendants failed in all other grounds put forward by them in their grounding affidavit and defence, namely that the claims were frivolous, vexatious and an abuse of process of court.

·                While the State defendants claim that the 5432P proceedings disclose no reasonable cause of action their pleadings failed to identify why this was the case.

·                The statement of claim in the 5432P proceedings makes claims directly against the State defendants, thus the proceedings are not just limited to a bare claim of vicarious liability.  Accordingly, the State defendants are correctly named in the proceedings.

·                The Judge failed to consider the claims in negligence made directly against the State defendants and which the State defendants have failed to deny.

·                Dismissing the 5432P proceedings against the State defendants results in prejudicing those proceedings since the plaintiff can no longer make any claims directly in the proceedings against the State defendants “[including] claims of vicarious liability or negligence”. 

·                The Judge erred in allowing the State defendants to rely on a new statutory defence (s. 3 and s.7 of the 1995 Act) which first appears in their written submissions when no such defence was pleaded in their grounding affidavit or their defence. 

·                The Judge erred by failing to subject the State defendants to the “high bar” necessary for a dismissal application.

·                The Judge erred by failing to state if the dismissal order was made under Order 19, r.28 RSC or the inherent jurisdiction of the court as an abuse of process.

·                The Judge erred by granting dismissal when there were conflicting material facts and/or questions of law not well settled. 

·                The Judge erred in interpreting s. 3 and s.7(3) of the 1995 Act as amounting a complete defence and implicit statutory bar to the plaintiff’s claims against the State defendants.

·                The Judge erred in first hearing and determining the dismissal application without considering the plaintiff’s unopposed application for a trial of a preliminary issue.

·                The Judge erred in finding a general immunity for the State defendants existed against defamation claims in circumstances when there is no such immunity provided for in the 2009 Act. 

·                The Judge erred in failing to consider all the defendants jointly and severally liable for the plaintiff’s claims as concurrent wrongdoers under s.11(1) and (2) of the Civil Liability Act 1961.

·                The Judge erred by permitting the State defendants to adduce affidavit evidence in the absence of any application by those defendants pursuant to Order 40, r. 31 RSC for leave to rely on the said affidavit evidence in circumstances where the State defendants refused to provide the deponent for cross-examination following delivery of a valid notice to cross-examine. The Judge further erred by failing to disallow the said affidavit evidence as hearsay evidence.

·                The Judge erred in failing, when granting the dismissal order, to have regard to the plaintiff’s reliance on the 2003 Act and/or his constitutional rights.

·                The High Court’s interpretation of s. 3 and s.7 of the 1995 Act can only be read as implicitly providing the State defendants with an effective immunity against civil claims including claims made under statutory provisions such as the 2009 Act, such that if this Court were to uphold the dismissal order “this extreme statutory interpretation could open the floodgates to claims for wide immunity by the Irish State against civil claims…”

·                The Judge erred in failing to apply the precedent established in O’Donoghue v. Legal Aid Board [2004] IEHC 413.

·                If this Court were to uphold the dismissal order “this would have the effect of overturning the central core of the O’Donoghue judgment in relation to damages for breaches of constitutional rights.

·                Contrary to the Judge’s findings, there are real issues of prejudice if the dismissal order is upheld.

·                The State defendants’ reliance in the court below (and in this Court) on O’Keeffe v. Hickey [2009] 2 IR 302 is misguided as O’Keeffe is “not good legal [precedent] for issues of general principle of vicarious liability nor good legal [precedent] where breaches of fundamental rights are pleaded.

·                By virtue of their reliance on authorities such as McSorley v. O’Mahony (Unreported, High Court, 6 November 1996), O’Siodhachain v. O’Mahoney (Unreported, Supreme Court 7 December 2001) Lopes v. Minster for Justice Equality and Law Reform [2014] IESC 21 and Flanagan v. Kelly [1999] IEHC 116, the State defendants are proceeding as if they had cross-appealed the grounds upon which the Judge granted the dismissal order in circumstances where the State defendants “lost on the abuse of process grounds in the High Court”.  By re- arguing issues of abuse of process and contending that the 5432P proceedings are frivolous and vexatious, the State defendants “are making very similar claims to those which are the subject of the alleged defamatory statements in the 5432P claim”.

The State defendants’ arguments

42.          Based on their respondent’s notice and their submissions, the State defendants’ contentions in the appeal can be summarised as follows:

·                The plenary summons and statement of claim in the 5432P proceedings disclose no reasonable cause of action against the State defendants.  Any case which the plaintiff can establish in these proceedings can succeed and be recoverable against the Board alone.

·                The State defendants are not vicariously liable for any wrongful actions of the Board.

·                The 1995 Act, particularly s.7(3) thereof, prohibits the State defendants from exercising any power or control in relation to any particular case in which the Board is involved.

·                The State defendants were not in breach of the 2003 Act.

·                The application for the dismissal of the 5432P proceedings against the State defendants pursuant to Order 19, r.28 RSC is made on the basis that the plenary summons and statement of claim disclose no reasonable cause of action and is made irrespective of what is contained in the defence delivered by the State defendants.  The defence delivered is in any event a full denial of liability and the State defendants were not obliged to plead any particular statute.

·                Contrary to the plaintiff’s contentions, the affidavit sworn by the solicitor for the State defendants grounding the application to dismiss does not purport to give evidence and cannot be regarded as hearsay.  Thus, there are no grounds for seeking an order for cross- examination of the deponent.  

Discussion

43.         As can be seen, one of the arguments advanced by the plaintiff is that having regard to the provisions of Order 40, r.31 RSC, the Judge erred in permitting the State defendants to adduce the affidavit evidence of Ms. Rosingrave notwithstanding that the plaintiff had filed a notice to cross-examine her, and in circumstances where the State defendants had not sought the leave of the court to adduce her affidavit evidence as they were required to do, not having produced Ms. Rosingrave for cross-examination.  He further asserts that the dismissal order was made without regard to the provisions of Order 40, r.4 RSC.

44.         It will be recalled that on 6 January 2020 the plaintiff served a notice of intention to cross- examine Ms. Rosingrave and Mr. McInerney (who swore the affidavit grounding the Board’s motion for Consolidation). It is not altogether clear from the papers before the Court whether the notice of intention to cross-examine Ms. Rosingrave and Mr. McInerney on the alleged hearsay nature of their respective affidavits was directly raised in oral submissions before the Judge on 19 and 20 February 2020, or indeed whether the issue of whether the State defendants or the Board required the leave of the court to rely on their respective affidavits. These matters were, however, addressed by the plaintiff at some length in his written submissions to the High Court.  In truth, however, I do not believe that much turns on whether the issue was addressed orally before the High Court, or on the plaintiff’s contention that the Judge erred in making the dismissal order without first addressing his complaints regarding the State defendants’ reliance on Ms. Rosingrave’s affidavit. I accept the State defendants’ argument that Ms. Rosingrave’s affidavit grounding the dismissal application does not purport to give evidence (certainly not evidence that would warrant cross-examination) and, thus, its contents cannot be regarded as hearsay. The deponent, acting in a professional capacity as solicitor for the State defendants, set out in her affidavit the advices she has received, and her belief that the State defendants should be entitled to the reliefs sought in the notice of motion, namely the dismissal of the 5432P proceedings against the State defendants as disclosing no reasonable cause of action against these defendants. Thus, insofar as the plaintiff seeks to impugn the dismissal order by dint of the Judge’s alleged failure to take on board his complaints about Ms. Rosingrave’s affidavit, this ground of appeal has no merit and, accordingly, the authorities cited by the plaintiff in his submissions cannot assist him. I turn now to the plaintiff’s other grounds.

45.         Order 19, r.28 RSC provides:

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

As noted by Clarke CJ in Moylist Construction Ltd. v. Doheny [2016] 2 IR 283 (at para. 3.1), an application under Order 19, r.28 is based on the contention that the case as pleaded does not disclose a cause of action.

46.         The State defendants’ application to dismiss was made pursuant to Order 19, r.28 RSC, the State defendants claiming that the plaintiff’s statement of claim in the 5432P proceedings “discloses no reasonable cause of action” or that “it is frivolous and/or vexatious and/or bound to fail”.

47.         It is well established that the jurisdiction conferred by Order 19, r. 28 is exercised by reference to the pleadings only. As said by Costello J. in Barry v. Buckley [1981] IR 306, “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”.  In Jeffrey v. Minister for Justice [2019] IESC 27, Clarke J. echoed the view expressed by Costello J. in Barry v. Buckley when he stated, “in hearing an application under O.19, r.28, the Court is confined to considering the pleadings alone”. Thus, it is the text in a plaintiff’s plenary summons or statement of claim that must be shown to disclose no reasonable cause of action or that the action is frivolous or vexatious. The court considers the pleadings only and must proceed on the basis that any statements of fact in the pleading sought to be struck out are true and can be proved by a party. (See Salthill Properties Ltd. v. Royal Bank of Scotland [2009] IEHC 207, at para. 3.12)

48.          Delaney, McGrath and Egan, Civil Procedure in the Superior Courts. (4^th Edn., Round Hall, 2018) (at para. 16-07) describe a statement of claim as disclosing no reasonable cause of action “where facts and matters pleaded in the statement of claim do not constitute a cause of action that is known to the law or likely to be established.” The authors cite Flanagan v. Kelly [1999] IEHC 116 as an example where a statement of claim was found to disclose no reasonable cause of action. There, the defendant had acted as accountant and auditor of a company that had gone into liquidation of which the plaintiff was a former director. It was pleaded in the statement of claim that by reason of the negligence and breach of contract of the defendant, the company had been prematurely wound up. It was held that the claim was bound to fail on the basis that the losses were those of the company and not the personal losses of the plaintiff-the overarching principle being that the plaintiff was not entitled to maintain such a claim which was bound to fail.

49.         In Moffitt v. Bank of Ireland (Unreported, Supreme Court, 19 February 1999), [1999] 2 JIC 1901, the Supreme Court struck out a claim pleaded against the second named defendant, a solicitor, that he had prepared an affidavit on behalf of his clients which was false. Keane J. was satisfied that even if it was the case that the affidavit was false that could not give rise to a cause of action against a solicitor who was merely discharging his professional duties to his clients. Thus, even allowing for the fact that the plaintiffs were not professionally represented and while reading the statement of claim “in as expansive a fashion” as he could, Keane J. was satisfied that it did not disclose a sustainable cause of action and did not admit of any amendment that could save it.

50.         Regarding the jurisdiction under Order 19, r. 28 to dismiss proceedings on the basis that they are frivolous or vexatious, as described in Fox v. McDonald [2017] IECA 189:

“The word frivolous when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstances... Proceedings which are regularly struck out as frivolous or vexatious are proceedings clearly destined to cause irrevocable damage to a defendant, such as where a defendant is asked to defend the same claim for a second time or where a plaintiff seeks to avail of the scarce resources of the courts to hear a claim which has no prospect of success.” 

In Nowak v. Data Protection Commissioner [2012] IEHC 449, Birmingham J. held:

“Frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”.

51.          In Riordan v. Ireland (No.5) [2001] 4 IR 463, Ó’Caoimh J. described the factors which might indicate that proceedings are vexatious as including the following:

·                The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

·                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 relief;

·                Where the action is brought for an improper purpose;

·                Where issues tend to be rolled forward into subsequent actions and repeated and supplemented often with actions brought against lawyers who have acted for or against the litigant in earlier proceedings;

·                Where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

·                Where the respondent persistently takes unsuccessful appeals from judicial decisions.

52.           As noted in Delany, McGrath and Egan, Civil Procedure in the Superior Courts (4^th Edn., Round Hall, 2018):

“There is a degree of overlap between claims that are unsustainable or bound to fail and those that are regarded as frivolous or vexatious.  It is also evident that the category of proceedings that will be considered to be frivolous and vexatious is broader and extends to proceedings which although they have a reasonable prospect of success will not confer any tangible benefit on the plaintiff or are taken for collateral or improper motives.” (at para. 16-32)

53.          Order 19, r.28 is not the only means upon which the court can strike out proceedings.  Proceedings may also be struck out pursuant to the inherent jurisdiction of the court.  As explained by McMenamin J. in Tracey v. Irish Times Limited [2019] IESC 62, at para. 29:

“The inherent jurisdiction of the Court to strike out proceedings involves a somewhat broader scope of inquiry, which is not confined to the pleadings. The jurisdiction is to be exercised sparingly, and only in clear cases. If, having considered the case, a court is satisfied that a plaintiff’s case must fail, then it is a proper exercise of its discretion to strike out or dismiss proceedings, the continued existence of which cannot be justified, and which may manifestly cause irrevocable damage to a defendant”.

54.          The reference to the ability to strike out pursuant to the inherent jurisdiction of the court not being confined to the pleadings harkens back to the words of Costello J. in Barry v. Buckley who stated that a court, when considering the power to strike out pursuant to its inherent jurisdiction, can take a broader view than that required under Order 19, r.28 and may hear evidence on affidavit rather than merely having regard to the pleadings, which dismissal pursuant to Order 19, r.28 mandates. 

55.          One of the complaints made by the plaintiff in the appeal is that it is not clear from the judgment of the High Court on what basis the Judge dismissed the 5432P proceedings against the State defendants i.e. whether they were dismissed pursuant to Order 19, r.28 or the inherent jurisdiction of the court.

56.         I am satisfied that the High Court judgment makes clear that the jurisdiction first invoked was that pursuant to Order 19, r. 28. Indeed, the Judge expressly refers, at the outset of his ex tempore judgment, to Order 19, r.28 as the basis for the application.  For the reasons he sets out, he proceeds to dismiss the 5432P proceedings against the State defendants on the basis that the proceedings disclose no reasonable cause of action against the State defendants (one of the grounds for dismissal provided for in Order 19, r.28) by reason of the provisions of s. 3 and s. 7(3) of the 1995 Act.  He also found, relying on McSorley v. O’Mahony, that the continuation of the proceeding against the State defendants would confer no gain on the plaintiff.

57.           In my view, the issue here is not the nature of the jurisdiction invoked but rather firstly, whether the Judge correctly concluded that the plaintiff’s pleadings disclosed no reasonable cause of action against the State defendants pursuant to Order 19, r.28 and, secondly,  whether having (as it would appear by his reliance on McSorley) also invoked the inherent jurisdiction of the court, the Judge correctly concluded that the proceedings should be dismissed as an abuse of process because they conferred no gain on the plaintiff. 

58.         The central tenet of the State defendants’ argument is that the provisions of s.3 and s.7(3) of the 1995 Act properly construed mean that the plaintiff is effectively precluded from maintaining the claims he makes in the 5432P proceedings against the State defendants. I turn now to those statutory provisions.

59.         Section 3 of the 1995 Act provides for the establishment of the Board, in the following terms:

“3. Establishment of Legal Aid Board…

(2) The Board shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and, with the consent of the Minister, to acquire, hold and dispose of land or an interest in land or rights over or in respect of land and to acquire, hold and dispose of any other property.”

(3) The Board shall, subject to the provisions of this Act, be independent in the exercise of its functions.”

60.          As defined in Murdoch’s Dictionary of Irish Law (5^th Edn), a “body corporate” is defined as: “a succession or collection of persons having in the estimation of the law an existence and rights and duties distinct from the individual persons who form it from time to time [e.g.] a company registered under the Companies Acts, a local authority, a body established by charter.”

61.          Section 7 of the 1995 Act sets out general policy directives as to legal aid and advice:

“7. (1) The Minister may, by order, from time to time as occasion requires, issue to the Board such general directives as to policy in relation to legal aid and advice as he or she considers necessary.

(2) The Board shall, in performing its functions, comply with any directive under this section.

(3) Nothing in this Act shall be construed as enabling the Minister to exercise any power or control in relation to any particular case with which the Board is or may be concerned.”

62.         Before considering whether the Judge was correct to find that because of the provisions of s.7(3) of the 1995 Act the pleadings in the 5432P proceedings disclose no reasonable cause of action against the Minister, it is appropriate at this juncture to consider the plaintiff’s complaint that the Judge wrongly permitted the State defendants to rely on a statutory defence that they had not pleaded. He says that any litigant is required to bring forward their full case in their pleadings and that if the State defendants were intent on relying on the provisions of s.7(3) they should have pleaded as much. In support of his argument, the plaintiff cites Byrne v. Johnston [2021] IEHC 435.

63.         It is the case that the State defendants do not make direct reference to the provisions of s. 3 or s.7(3) of the 1995 Act in their defence. However, at para. 2 of the defence, it is pleaded that the state defendants “are precluded by law in exercising any power or control in relation to any particular case with which [the Board] is or may be concerned”. Similarly, in her affidavit grounding the dismissal application, Ms Rosingrave avers to the Minister being “precluded from exercising any power or control in relation to any particular case with which [the Board] is or may be concerned”. Both the defence pleading and Ms. Rosingrave’s averment echo the provisions of s. 7(3). Thus, it cannot be said that the plaintiff was taken by surprise or that what occurred was “litigation by ambush” as the plaintiff contends. Nor is it the case that the High Court at the hearing of the motion to dismiss allowed the State defendants to introduce a new statutory defence, as the plaintiff seeks to argue. The argument on which the State defendants relied was clearly flagged in the State defendants’ defence and Ms. Rosingrave’s affidavit. Moreover, the parties had exchanged written legal submissions prior to the hearing in the High Court. The State defendants’ submissions clearly recite the provisions of s. 3 and s.7(3) of the 1995 Act. Thus, the plaintiff cannot be said to have been prejudiced or subjected to unfair procedures on the day of the hearing.

64.         I turn now to the plaintiff’s argument that the Judge erred in relying on s.3 and s.7(3) of the 1995 Act as a basis to conclude that the 5432P proceedings disclosed no reasonable cause of action against the State defendants. Here, the 5432P proceedings have at their core a claim of defamation, negligence and breach of statutory duty being alleged by the plaintiff as against the Board and are said to arise from a specific act or acts of the Board in its course of dealing with the plaintiff following the grant to the plaintiff of two legal aid certificates to aid his progression of two professional negligence claims he had instituted against third parties. In essence, the plaintiff’s claims arise in respect of alleged defamatory statements contained in correspondence he received from the Board, and from the withdrawal by the Board of the two legal aid certificates it had granted the plaintiff.

65.         Clearly, the plaintiff’s course of dealings with the Board fall to be construed as a “particular case” in the sense this phrase is used in s. 7(3) of the 1995 Act. Accordingly, the issue that arises here is whether the statutory constraints imposed by s.7(3) of the 1995 Act on the Minister in respect of “any particular case with which the Board is or may be concerned”, properly interpreted, means that the plaintiff has no reasonable cause of action against the State defendants. In other words, the issue is whether his claim that the State defendants are vicariously liable for the actions of the Board is bound to fail.  Thus, it is in context of s.7(3) of the 1995 Act (and having regard to the provisions of s.3 of the 1995 Act) that the plaintiff’s claims at paras. 7 and 8 of the general endorsement of claim to the plenary summons and para. 92(e) and (f) of the statement of claim that the State defendants bear vicarious liability for the alleged wrongs of the Board fall to be considered.

66.          In my view, on any logical or reasonable reading of the provisions of s.7(3) of the 1995 Act, they amount to a statutory bar to the plaintiff’s reliance on the alleged vicarious liability of the State defendants for the acts of the Board of which he complains.  Having regard to the provisions of s.7(3), the specific acts in respect of which the plaintiff says the State defendants are vicariously liable clearly fall into the category of a “particular case with which the Board is … concerned”. The nature of the claims being made by the plaintiff against the Board, viewed against the provisions of s.7(3) of the 1995 Act, means that the plaintiff’s 5432P proceedings on their face disclose no reasonable cause of action against the State defendants. For this reason, I also reject the plaintiff’s arguments in relation to s.11(1) and (2) of the Civil Liability Act 1961.

67.         My conclusion in the above regard does not, of course, mean that the plaintiff does not have a cause of action against the Board (an entirely autonomous entity), or that he cannot maintain the claims he makes in the 5432P proceedings against the Board. These will, in due course, be decided on their merits. Moreover, if he is successful in his claims against the Board, any award of damages is fully enforceable against the Board. Thus, for the reasons set out above, I would uphold the Judge’s decision with regard to the import of s. 7(3) of the 1995 Act. In concluding as I do I am conscious of the jurisprudence which states that an application to dismiss proceedings is not the place to decide complex issues of law; however, I do not consider any complex legal issue arises here, having regard to the clear import of s.7(3) of the 1995 Act.

68.         The plaintiff asserts that the 5432P proceedings allege negligence by the State defendants and that, accordingly, the proceedings against the State defendants were not being maintained solely on the basis of vicarious liability. He contends that the Judge in making the dismissal order did not consider the claims in negligence made against the Minister. In response to questions put by the Court, the plaintiff agreed that he did not plead negligence directly against the State defendants. He says, however, that he pleaded as against the State defendants, in particular the Minister, the statutory provisions of the 1995 Act dealing with the Minister’s oversight of the Board and he refers to the fact that he had made a complaint to the Minister and that the Minister failed to investigate the serious complaints he made against the Board.  He says therefore that the pleadings in the 5432P proceedings imply negligence on the part of the Minister.

69.          Even if it can be taken (and for present purposes I will take it to be so) that the 5432P proceedings (in particular what is pleaded at paras. 10-14 of the statement of claim) allege negligence directly on the part of the Minister, in my view, the plaintiff’s claims in this regard are, like the vicarious liability claim, also caught by s.7(3) of the 1995 Act which provides that the Minister is precluded from exercising any power or control over the Board in relation to any individual case.  

70.         In paras. 49 - 56 of his written submissions, under the heading “Interpretation of the Civil Legal Aid Act 1995, s.3 and s.7”, the plaintiff argues that the dismissal order has the effect of negating the decision of the High Court in O’Donoghue v. Legal Aid Board [2006] 4 IR 204, as approved in subsequent cases including Magee v. Farrell [2009] 4 IR 703 and Conlon v. Legal Aid Board [2017] IEHC 4. The plaintiff’s argument here is that the consequence of the dismissal order made in favour of the State defendants is to effectively negate the decision in O’Donoghue.

71.         I do not find merit in the plaintiff’s argument.  In my view, there is no comparison with the present case to the factual matrix and the legal issues that arose in O’Donoghue.

72.          In O’Donoghue, the State had failed to provide financing for the Board resulting in the Board not being able to progress Ms. O’Donoghue’s case for a 25-month period.  The State was consequently held to be directly liable for this failure and to have breached Ms. O’Donoghue’s constitutional right of access to the courts. Kelly P. found that the delay encountered by Ms. O’Donoghue was caused exclusively by the lack of resources made available to the Board by the State. It was in this context that the State was found to have breached her constitutional right of access to the courts. Given the entirely different legal and factual issues at play in O’Donoghue, there is no merit in the plaintiff’s contention that the Judge’s ruling in the present case negates the principle established or the precedent set in that case.

73.         The plaintiff in his submissions also relies on Jeffrey v. Minister for Justice [2019] IESC 27 and submits that the Judge failed to consider this jurisprudence in allowing the State defendants’ application for the dismissal of the 5432P proceedings against them.

74.          In Jeffrey, the relevant facts were as follows.  The presenting garda in the course of a criminal prosecution against Mr. Jeffrey in the District Court alleged in court that Mr. Jeffrey had a significant criminal record.  This claim proved to be untrue.  Mr. Jeffrey commenced proceedings in the High Court for damages for negligence, breach of duty and negligent misstatement.  The State brought an application before the High Court seeking to have those proceedings dismissed either on the basis that the claim as pleaded disclosed no cause of action or that the proceedings were bound to fail.  The High Court acceded to the application and the proceedings were dismissed.  Mr. Jeffrey appealed.  One of the issues that arose in the case was the question of whether a statement of the type made by the presenting garda could give rise to a claim for negligent misstatement.  The State was prepared, in the dismissal application, to concede that Mr. Jeffrey’s claim had to be taken at its height and, as noted by Clarke CJ, “[i]t was also accepted that it must be assumed that the State would be vicariously liable for any such negligence” (at para. 5.7). Another argument made by the State in the Supreme Court (and in the High Court) was that the presenting garda enjoyed immunity from suit such that any claim based on what he said in the District Court must be bound to fail.  In circumstances where the presenting garda had not been sworn in the District Court, Clarke CJ took the view that the presenting garda could not readily be taken to enjoy the immunity that a witness giving evidence in court would normally enjoy.  He also found that the precise characteristics of the presenting garda’s status as representing the DPP in the District Court were not absolutely clear. Therefore, while he concluded that there may well be grounds for believing that the presenting garda may enjoy an immunity from suit, Clarke CJ found the question “complex and not one where it can be said with sufficient clarity that the defence will prevail on the grounds of immunity alone”.

75.         In reliance on Jeffrey, the plaintiff asserts that there are no valid grounds upon which the State defendants here can seek a dismissal order and he asserts that in asking this Court to uphold the High Court order the State defendants are asking the Court to, effectively, overturn Jeffrey. 

76.          Again, I find no merit in this argument. Nothing the Judge has said has any impact on the ruling in Jeffrey. Here, the Judge merely had regard to the specific provisions of s.7(3) of the 1995 Act and to the Board’s legal status as provided for in s. 3 of the 1995 Act and duly found that as a legal entity in and of itself, the Board could be sued as a body corporate, and found, more crucially, that the provisions of s.7(3) of the 1995 Act precluded the Minister from having any control of acts of the type of which the plaintiff complains. As noted by the Judge, the Board is “a body corporate” with power “to sue and to be sued” for any wrongs it or its servants or agents are alleged to have committed.  As I have already found, the Judge properly concluded that the Minister is precluded by statute from exercising any power or control in relation to any particular case with which the Board is concerned, hence neither the Minister nor the third and fourth defendants can be said (or assumed) in law to bear liability (directly or vicariously) for the alleged wrongs of the Board in this case.  In Jeffrey, the wrongs alleged to have been committed were by a member of An Garda Siochána and, accordingly, it was acknowledged in that case that as the State was effectively the employer of the presenting garda, “it must be assumed that the State would be vicariously liable for any such negligence” as was claimed against the presenting garda.   

77.         The plaintiff also disputes the Judge’s conclusion that the 5432P proceedings against the State defendants should be dismissed on the basis that they confer no gain on him. Relying on Gilchrist v. Sunday Newspapers [2017] IECA 190, he asserts that the Judge erred in dismissing the 5432P proceedings against the State defendants on this basis.

78.         In Gilchrist, the defendants sought an order from the High Court pursuant to its inherent jurisdiction striking out part of a plaintiff’s claim for defamation on the grounds that the pursuit of such a claim was an abuse of process. The High Court refused the application. The defendants appealed to this Court arguing that the Court should follow the approach of the English courts in Jameel (Yousef) v. Dow Jones & Co. Inc. [2005] QB 946 and strike out claims for damages for defamation as an abuse of process where the probable benefit to the plaintiffs, if successful, is minimal and disproportionate to the costs of the proceedings and use of court time.

79.          In the course of her judgment, Finlay Geoghegan J. described the “Jameel point” “[as] the recognition and exercised by the English courts of an inherent jurisdiction to strike out as an abuse of process a libel (or defamation) claim which may yield some benefit but where the probable damage to the defendants in terms of costs and the impact on court resources will be disproportionate to the probable benefit for the plaintiff in succeeding…” (at para. 18).

80.         Ultimately, after a consideration of the relevant case law, Finlay Geoghegan J. held that Jameel did not represent the law in this jurisdiction. She stated:

“29. It therefore appears to me that on present authority, the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous or vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursuing the claim. Whilst I have noted that Hardiman J. uses the phrase “no tangible benefit”, I do not understand him to use it in a sense which would include an award of damages which may be minimal or small vindication of a reputation as he considered the absence of a tangible benefit would mean, the proceedings would be pointless or moot. That is the threshold which a defendant must meet.

30. The issue must, however, be decided by reference to the plaintiff’s claim alone. It is only where a defendant can persuade a court that the plaintiff can obtain no benefit or no tangible benefit (in the sense used by Hardiman J.) from the proceedings that they may be struck out as an abuse of process. Essentially it is because the proceedings are then pointless and, in those circumstances, it would be an abuse of process to permit them to proceed and in doing so cause detriment to the defendant or abuse the use of court time.

31. What does not appear permissible on an application to strike out proceedings as an abuse of process is to conduct what is referred to in Mullis and Parkes, Gatley on Libel and Slander, 12th Ed., (London, 2015) at para. 30.48 in relation to the Jameel abuse of process as “in essence a cost-benefit calculation” between the potential probable benefit to the plaintiff if successful and probable costs and use of court time if the proceedings continue and determine whether it is proportionate to permit the proceedings to continue.

 32. This conclusion is informed by the fact that the jurisdiction to strike out proceedings or a claim without a hearing on the merits is one which limits the constitutional right of access to the Courts. Also, it is of course a jurisdiction which must be exercised sparingly and only in clear cases: Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425.

33. Accordingly, I have concluded that the trial judge was correct in deciding that the approach of the English courts, as explained in Jameel, to striking out a defamation claim as an abuse of process where the potential benefit to a plaintiff is disproportionate to the probable costs and use of court resources is not a basis upon which the Irish courts will exercise an inherent jurisdiction to strike out proceedings as an abuse of process

81.         In his submissions the plaintiff suggests that the Judge’s finding that the proceedings against the State defendants confer no benefit on the plaintiff offends against the decision of this Court in Gilchrist. I do not agree. Here, the finding of Twomey J. that even if the dismissal order were granted the plaintiff would still be entitled to recover in full from the Board (thus indicating that the 5432P proceedings confer no benefit on the plaintiff) entirely accords with what is said by Finlay Geoghegan J. in Gilchrist, namely that where it is established “that the plaintiff can obtain no benefit or no tangible benefit” then proceedings will be struck out since, as observed by Finlay Geoghegan J., the proceedings would be “pointless”. I am satisfied that it is in that sense that Twomey J. considered that the State defendants had established their claim that the 5432P proceedings against them should be struck out.  In other words, as the Judge opined, since the plaintiff had the Board to sue, he did not need three other State defendants “defending, effectively, on the double proceedings”.

82.          I note that the Judge cited McSorley v. O’Mahony as authority for the proposition that proceedings may be struck out as conferring no benefit on a plaintiff. In McSorley, the McSorleys had obtained an award of damages against Cork Corporation. At the end of that action, their solicitor, Mr. O’Mahony, obtained a charge for the costs awarded to the McSorleys against the money payable by Cork Corporation by way of damages. The McSorleys then instituted proceedings against Mr. O’Mahony claiming that he had refused to hand over title deeds and that he had acted negligently in respect of the McSorleys’ purchase of certain property. Mr.O’Mahony applied for a stay on the proceedings on the ground that the McSorleys had obtained an award of damages against Cork Corporation and that this precluded the maintenance of the action against him.  

83.         Costello J., having invoked the inherent jurisdiction of the Court to stay or dismiss the proceedings, duly determined inter alia that the McSorleys’ action for damages  against Mr. O’Mahony should be stayed on the grounds that the McSorleys could obtain no benefit from the action as they had succeeded in the same action against Cork Corporation and that Cork Corporation was not insolvent and could pay the damages awarded to the McSorleys by the High Court or such damages as the Supreme Court might award (the quantum of damages having been appealed by Cork Corporation). He stated:

“It is an abuse of process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff.”

84.         Effectively, therefore, although Costello J. did not use the word, the import of his ruling that the McSorleys could derive no benefit from the action was that it would be “pointless” (in the sense Finlay Geoghegan J. used that word in Gilchrist) for the McSorleys to proceed with their action for damages against Mr. O’Mahony, given that they had recourse to Cork Corporation for their damages claim.  I am satisfied that McSorley correctly represents the law in this jurisdiction having been cited with approval by Finlay Geoghegan J. in Gilchrist.

85.         Thus, for the reasons set out, I would uphold the Judge’s conclusion that the 5432P proceedings against the State defendants should be struck out as conferring no benefit on the plaintiff.

The plaintiff’s ECHR argument

86.         At para. 9 of the general endorsement of claim to the plenary summons in the 5432P proceedings the plaintiff seeks a declaration that the defendants have a duty under s.3(1) of the 2003 Act to protect citizens’ ECHR rights and it is pleaded that the defendants have failed to protect the plaintiff’s Art.6 and Art. 8 rights under the Convention.  Accordingly, the plaintiff claims damages for this breach.  At para. 9 of the statement of claim, he references instances where the State has been held liable for breach of the Convention including McFarlane v. Ireland [2010] ECHR 1272.

87.         At paras. 87 - 91 of the statement of claim, under the heading “Claim of breach of plaintiff’s ECHR convention rights” the plaintiff again asserts a breach of his ECHR rights, largely attributing the alleged breaches to the Board.  At para. 92(g), he seeks “a declaration that the Plaintiff’s rights protected under Article 8 [ECHR] [were] breached, as the Defendants failed to protect the Plaintiff’s rights which resulted in causing serious prejudice to the Plaintiff enjoyment of these rights”.

88.         In their submissions to the court, the State defendants assert that nowhere in the statement of claim is it shown or pleaded that the State defendants have breached their obligations under the Convention or the 2003 Act. I accept that to be the case.

89.         Insofar as the plaintiff purports to argue that the dismissal order offends against his rights including his right of access to the courts pursuant to the ECHR, I am satisfied that that there is no merit in this argument. The plaintiff has an effective remedy for the wrongs he alleges by dint of the defamation and other claims he makes against the Board in the 5432P proceedings. Therefore, the dismissal order cannot be said to offend against his right of access to the courts. Insofar as part of his claims in the 5432P proceedings allege that the Board’s termination of the two legal aid certificates breached his ECHR rights, that claim will be determined on its merits in due course.

90.         For all the reasons set out above, I would dismiss the plaintiff’s appeal against the dismissal order.

The appeal of the consolidation order

91.         As can be seen, the consolidation order directed that the plaintiff’s claims in the three sets of plenary proceedings, save the defamation claims in the 5432P proceedings, were to be consolidated into one set of proceedings under the record number of the 4595P proceedings, with the defamation claim to be left extant in the 5432P proceedings.

The plaintiff’s arguments

92.         In summary, the plaintiff asserts that in making the consolidation order, the High Court judge erred in the following regards:

·                In permitting the Board to rely on Mr. McInerney’s affidavit evidence.

·                In concluding that the Board had provided sufficient evidence to support their consolidation application. 

·                In concluding that consolidation would result in a saving of legal costs.

·                In failing to consider all the criteria relevant to consolidation.

·                In proposing a new relief not sought by the Board and failing to allow the parties to make submissions on this newly proposed relief.

·                Wrongfully including/ordering the State defendants as named defendants for all the non-defamation claims in circumstances where in respect of the plaintiff’s claim that the Board breached the 2017/426JR settlement agreement, there could be no valid basis for involving the State defendants in this regard.  

93.          The plaintiff further asserts that the consolidation order creates contradictions. He submits that it cannot be valid for the Judge to dismiss the 5432P proceedings as against the State defendants just for those claims to now re-appear in the consolidated proceedings. 

94.         He contends that the criteria for consolidation as set out in Byrne v. Johnston [2021] IEHC 435 (approving Duffy v. Newsgroup Limited [1992] 2 IR 369) are not met in this case and he relies on Lennon v. Health Service Executive [2015] IECA 92 which he asserts the Judge failed to consider. 

95.         The plaintiff also says that the Board failed to put the plenary summons in the 5431P proceedings before the High Court and asserts that they failed in their grounding affidavit to clearly identify the necessary factual matrix and questions of law such as would satisfy the criteria for an order for a consolidation.

96.         It is also contended that the complaints contained in the affidavit grounding the application for a consolidation which refer to the length of the plaintiff’s statements of claim in the 4595P and 5432P proceedings are not germane to the question of whether the criteria for consolidation exist in this case.

97.           Essentially, the plaintiff says that the motion to consolidate was wholly ill-conceived from the start and did not have sufficient factual evidence or legal precedents to support the making of such an application.  He contends that the consolidation application and the Order which followed has resulted in extraordinary delays in the progress of the three sets of proceedings. He further asserts that he will have difficulty in consolidating the non-defamation aspect of the 5432P proceedings with the 4595P and 5431P proceedings.

The Board’s submissions

98.          The Board submits that it was entirely correct for the High Court to make the consolidation order and argues that the order complies with the requirements set out in Duffy.  It is submitted that the High Court was correct and acting within its jurisdiction in determining that the three sets of proceedings arose out of the same facts and that an order for consolidation would save time and expense and not cause injustice between the parties.  Counsel for Board describes the consolidation order as an interlocutory order with the objective of getting the plaintiff’s various proceedings to the starting block.  Relying on Duffy, he submits that it made sense for all matters save the defamation issue to be dealt with in one set of proceedings.  He further says that there is no basis for this Court to interfere with what was essentially a case management decision made by the High Court, counsel, in this regard, quoting Clarke J. in Dowling v. Minister for Finance [2012] IESC 32.

Discussion

99.         As he did in respect of Ms. Rosingrave’s affidavit grounding the State defendants’ application to dismiss, the plaintiff takes issue with Mr. McInerney’s affidavit grounding the Board’s consolidation application. However, for the same reasons I have already set out earlier in this judgment, I find no merit in the plaintiff’s contention that the Judge ought not have permitted the Board to proceed on foot of Mr. McInerney’s affidavit.

100.     I turn now to the other grounds advanced by the plaintiff.

101.     Pursuant to Order 49, r.6 RSC, proceedings pending in the High Court may be consolidated by order of the court on the application of any party and whether or not all the parties consent to the order.

102.     In the present case, the Board brought such a consolidation application.  The issue for consideration here is whether the Judge was within his jurisdiction in making the order he did. The principles that are to be applied in considering an application to consolidate were discussed in Duffy v. Newsgroup Limited where McCarthy J. set out the three questions that should be addressed, as follows:

(i)            Is there a common question of law or fact of sufficient importance?

(ii)         Is there a substantial saving of expense or inconvenience? and,

(iii)       Is there a likelihood of confusion or miscarriage of justice?

103.     Before turning to the question as to whether the test in Duffy is satisfied here, the first observation I would make is that the plaintiff’s defamation proceedings against the Board do not form part of the consolidation order. There is, therefore, no suggestion that the plaintiff will be deprived of his right to trial by jury in respect of his defamation action, a right acknowledged by the Judge (and indeed counsel for the Board).Thus, contrary to the plaintiff’s submissions, it is not the case that by making the consolidation order the Judge failed to have regard to the decision of this Court in Lennon v. Health Service Executive [2015] IECA 92.

104.     I believe that it is fair to say that there is a considerable overlap between the non-defamation issues raised in the 5432P proceedings and the issues raised in the 4595P proceedings. A cursory read of the current statements of claim in each of the proceedings clearly demonstrates this. The 4595P proceedings centre on what is alleged to be the Board’s negligence in failing to provide timely legal aid to the plaintiff in respect of his professional negligence proceedings and, having then provided such legal aid, the Board’s termination of the two legal aid certificates it had provided. Interposed with those claims is a claim of objective bias alleged against the Board in respect of its dealings with the named defendants in the plaintiff’s professional negligence proceedings.

 

105.     In the 5432P proceedings, the pleadings regarding the defamation issue apart, the claims that are levied against the Board include that the Board was negligent in its dealings with the plaintiff, that the Board failed to adequately address complaints made by the plaintiff about delay in the provision of legal aid and the withdrawal of legal aid previously granted to the plaintiff in respect of judicial review proceedings he had instituted against the Board itself. The plaintiff also pleads that the Board breached its fiduciary duty and statutory duty to the plaintiff. Moreover, the plaintiff pleads that the withdrawal by the Board of the two legal aid certificates it had previously granted to the plaintiff constitutes a breach by the Board of the compromise agreement which followed the plaintiff’s 2017 judicial review proceedings. He also claims that the Board breached his ECHR rights.

106.     It is equally fair to say the there is a considerable overlap between the two sets of pleadings I have just described and the pleadings (as they presently stand in the general endorsement of claim to the plenary summons) the plaintiff advances in respect of the Board in the 5431P proceedings. I have earlier summarised those pleas at para. 5 of this judgment and so it is not necessary to rehearse them again. Suffice it to say that the general thrust of the plaintiff’s claims in the 5431P proceedings relate to the Board’s alleged failure to provide the plaintiff with legal aid, both in relation to proceedings the plaintiff has taken against the Board itself and in respect of family law proceedings in which the plaintiff was involved. The plaintiff pleads negligence, breach of duty (including statutory duty), misfeasance and breach of his ECHR rights on the part of the Board. The extent of his pleadings regarding the State defendants are confined to a claim that the State defendants are vicariously liable for the alleged wrongs of the Board and that the State defendants breached his ECHR rights.

107.       I am satisfied that all the various proceedings originate from the plaintiff’s interaction with the Board. In other words, the three sets of proceedings in issue here all stems from the plaintiff’s (qua litigant seeking legal aid) dealings with the Board over a number of years. In the words of Ryan J. in James Elliott Construction v. Irish Asphalt [2014] IEHC 208, there is a “powerful nexus between the cases”. The dealings between the plaintiff and the Board constitute the common question of fact of sufficient importance such as, in my view, satisfies the first limb of the test in Duffy.   

108.     I am also satisfied that the second limb of the test is satisfied. It cannot be gainsaid but that the effect of the consolidation order here would result in very significant savings of expense and court time by reducing the number of actions before the courts arising out of the same matters.

109.     For the reasons set out hereunder, I am satisfied that there is no likelihood of confusion or miscarriage of justice and that the plaintiff is not prejudiced either procedurally or substantively by the making of the consolidation order. 

110.     As a result of the dismissal order in the 5432P proceedings (where the claims against the State defendants have been dismissed) what is left in these proceedings are the plaintiff’s claims against the Board for defamation together with the non-defamation claims he makes. Pursuant to the consolidation order, the plaintiff only has to extract the non-defamation aspect of the 5432P proceedings as relate to the Board and incorporate them into a newly reconstituted statement of claim in the proceedings bearing record number 4595P which newly reconstituted statement of claim will also incorporate the further pleadings (whatever they may be) the plaintiff intends to make in the 5431P proceedings he has launched against the Board and the State defendants.

111.      Insofar as the plaintiff suggests that he is required to incorporate the claims against the State defendants he made in the 5432P proceedings into the newly consolidated proceedings he is mistaken in this regard given that all claims against the State defendants in the 5432P proceedings have been dismissed by the High Court (an Order that this Court has upheld).  Moreover, contrary to his argument, the plaintiff is not under any obligation by virtue of the consolidation order to plead any breach of contract (as is pleaded against the Board in the 4595P proceedings) against the State defendants in the consolidated proceedings. The claims and pleas in the 4595P proceedings do not concern the State defendants and, more importantly, the State defendants are not parties to these proceedings.

112.     Insofar as the plaintiff complains that he will have difficulty and/or suffer prejudice in drafting a new consolidated statement of claim in the 4595P proceedings incorporating all his claims save his defamation claim I do not accept that this task will cause him prejudice. It can hardly be said that the requirement to shorten his pleadings will prove unduly onerous for him or that there is any confusion as to what is required. What the plaintiff must do in the reconstituted statement of claim in the consolidated proceedings is as follows:

·         Incorporate into the newly reconstituted statement of claim his pleas against the Board as are presently set out in the statement of claim he has already delivered in the 4595P proceedings;

·         Incorporate into the newly reconstituted statement of claim the non-defamation aspects of his claim against the Board as are presently set out in the 5432P proceedings;

·          Incorporate into the new statement of claim whatever further pleas he intends to make based on the 5431P proceedings he has issued against the Board and the State defendants but in respect of which no statement of claim was delivered by the time the motions were heard. I note that in the course of an exchange with the plaintiff at the hearing of the consolidation motion the Judge enquired whether, in light of the dismissal order he had made in the 5432P proceedings, the plaintiff was in a position to undertake that he would not be proceeding against the State defendants in the 5431P proceedings. However, the plaintiff advised that he was not in a position to make any such commitment. I would observe that that the plaintiff should note the Judge’s comments regarding the plaintiff’s maintenance of the 5431P proceedings against the State defendants. The Judge observed that the plaintiff runs the risk of a further costs order if the State defendants choose to bring a further dismissal application. Indeed, I note from their written submissions in the plaintiff’s appeal against the consolidation order that the State defendants are reserving their position with regard to making a further application pursuant to Order 19, r. 28, following upon the delivery of the plaintiff’s now-to-be consolidated statement of claim incorporating the 4595P proceedings, the 5431P proceedings and the non-defamation aspects of the 5432P proceedings.  

113.       It is of course the case that the claims and pleas to be incorporated into the newly reconstituted statement of claim in the consolidated proceedings are subject to the 5000-word limit imposed by the Judge. While the plaintiff may feel that this may prove difficult given the length of the current statements of claim, I would observe that, as matters stand, there is already far too much duplication in these statements of claim.

114.     Insofar as the plaintiff says that he will have difficulty in distinguishing the non-defamation claims in the 5432P proceedings from the defamation claims made therein, I do not accept that to be the case. On any reading of the statement of claim already delivered in the 5432P proceedings, it is immediately apparent that the plaintiff is familiar with the tort of defamation and the provisions of the 2009 Act. Thus, he should have no difficulty in identifying the relevant pleadings relating to defamation and the 2009 Act that are required to remain in the 5432P proceedings (these proceedings continuing to be the vehicle under which the plaintiff’s defamation action against the Board will be progressed subject only to the requirement on the plaintiff to deliver a reconstituted statement of claim in the 5432P proceedings limited to 5,000 words).

115.     For the reasons set out above, I would uphold the consolidation order made by the High Court. I would also add that even if the test for consolidation had not been met in this case the connected nature of the proceedings in issue here would have called for some form of case management even if that were to fall short of consolidation. As Delany, McGrath and Egan state: “where there is some commonality between proceedings, and regardless of whether the criteria for the consolidation of proceedings are satisfied, the courts have an inherent jurisdiction to make directions as to the trial of the proceedings”.

116.        Thus, as I have said, even if I were not satisfied that the test in Duffy was met here, I would still find no basis upon which to interfere with the consolidation order, being satisfied that in making the order the Judge was acting entirely within his powers of case management.

117.     The value of case management by the High Court is well recognised by the appellate courts. As said by Denham J. in Talbot v. Hermitage Golf Club [2014] IESC 57:

“13. The use of judicial case management is crucial to the effective conduct of litigation including where litigants are unrepresented by lawyers. This approach helps to define the key issues and to clarify the responsibilities between the parties. It enables managed use of limited court resources. It can assist by making the case more understandable for all those concerned, and may facilitate an early settlement between the parties.

14. Further, case management assists a court in determining a case within a reasonable timeframe. This is important for all parties in an action.”

118.     In his concurring judgment in Defender Limited v HSBC France (formerly HSBC Institutional Trust Services (Ireland) Limited [2020] IESC 37, [2021] 1 ILRM 1, Charleton J. put it as follows:

“Complex cases, without case management, waste resources both for the system of justice and for those seeking justice.” (at page 60)

119.      It follows from the foregoing that appellate courts should be slow to interfere in case management decisions made by the High Court. As said by Clarke J in Dowling v Minister for Finance [2012] IESC 32, at para. 3.1:

“… There would be no reality to the achievement of the undoubted advantages which flow from case management if this Court were, on anything remotely resembling a regular basis, to entertain appeals from parties who were dissatisfied with the precise directions given or orders made by the Court arising out of failure to comply.”

120.     At para. 3.5 he stated that an appellate court “should only intervene if there is demonstrated a degree of irremediable prejudice created by the relevant case management directions such as could not reasonably be expected be remedied by the trial judge (or at least where the chances of that happening were small) and where therefore, unusually, the safer course of action would be for this Court to intervene immediately to alter the case management directions.”

121.       While in Wallace v HSE [2021] IECA 141, this Court (referring to Dowling and to PJ Carroll v Minister for Health and Children [2005] 1 IR 294) recognised that certain case management directions may have such far-reaching effect on one party or the other that immediate appellate intervention is warranted, this case is not such a case. The consolidation order as made by the Judge was made entirely within his discretion and, in my view, does not warrant intervention by this Court.      

The plaintiff’s appeal against the Orders refusing the reliefs he sought in his motions

122.     It will be recalled that there were a number of motions before the High Court in February 2020.  The Judge determined the sequence in which the various motions should be heard so as to make best use of the court’s time.  He determined firstly to hear the State defendants’ motion to strike out the proceedings against them in the 5432P proceedings, then to hear the Board’s motion to consolidate and, thereafter, to address the plaintiff’s various motions.

123.     As part of his appeal submissions, the plaintiff contends that the sequence in which the High Court dealt with the various motions was in and of itself erroneous and prejudicial.  He alludes to the fact that neither the State defendants nor the Board had flagged in advance their intention to seek priority for their respective motions and contends that his motions were filed first in time.  I am satisfied, however, that the date of issue of the various motions cannot be the sole determining factor in deciding the sequence in which several motions which are listed for hearing together are to be heard.  It goes without saying that the High Court, as a court of full and original jurisdiction, has the power to determine the most efficient manner and sequence in which to hear various motions listed before it provided, as per Dowling, that no injustice is thereby done to any party.

124.     On any analysis of the various motions that were before the High Court, it seems to me that in circumstances where there was an application that the claims against the State defendants in the 5432P proceedings should be struck out as disclosing no reasonable cause of action against them, it was appropriate and logical that that motion would be heard prior to the motion to consolidate, and indeed prior to hearing the plaintiff’s various motions insofar as they concerned the State defendants.  Without doubt, it would have been pointless to have allowed either the consolidation motion or the plaintiff’s motion of 30 October 2018 in the 5432P proceedings to proceed prior to the State defendants’ dismissal motion if the 5432P proceedings against the State defendants were to be dismissed, as transpired to be the case. Furthermore, the plaintiff has not established any prejudice arising from the sequence in which the motions were heard.

125.     I am also satisfied that the plaintiff has not established that the Judge erred in making the orders he did regarding the merits of the plaintiff’s motions.

126.      With regard to the plaintiff’s complaint that the Judge erred in refusing his motion for a trial on a preliminary issue, the plaintiff has not established how the Judge erred in determining that there were no agreed facts or discrete point of law such as might merit the directing of a trial on a preliminary issue.

127.     Nor has the plaintiff succeeded in establishing that the Judge erred in refusing to grant him judgment in default of defence against the Board in the 5432P proceedings. While no defence had been filed by the Board as required by the RSC, the Board had however brought an application for consolidation of various proceedings, in respect of which they were successful save for the defamation aspect of the 5432P proceedings. The consolidation order as made by the High Court led the High Court then to give directions as to newly constituted statements of claim to be filed in respect of the defamation and non-defamation actions. Given that the Judge made such order and gave such directions, he was well within his discretion in refusing the plaintiff judgment in default of defence against the Board in respect of the 5432P proceedings. Equally, it would have been pointless for the Judge to have embarked on a hearing as to the merits of the plaintiff’s application to amend his 20,000-word statement of claim in the 4595P proceedings given the consolidation order the Judge had already made, which required a newly reconstituted statement of claim incorporating all the plaintiff’s non-defamation claims and that same be limited to 5,000 words. If it is the case that the plaintiff has some new pleading he wishes to pursue against the Board regarding the matters that comprised the 4595P proceedings, he is free to incorporate that in the newly reconstituted statement of claim provided of course that the 5,000-word limit is respected.

128.     Thus, for the reasons set out, I would dismiss the plaintiff’s appeal against the High Court Orders refusing the reliefs claimed in the motions of 2 July 2018 and 30 October 2018. With reference to the case law referred to at paras. 117-121 above, in my view, the plaintiff has not met the threshold for intervention by this Court in matters concerning case management. Furthermore, as said by Clarke J. in Farrell v. Bank of Ireland [2012] IESC 42:

“The proper conduct of litigation requires parties to engage with the process in the High Court, to comply with procedural directions given by that court, and to only invoke the appellate jurisdiction of this court either at the end of the process or in the very limited circumstances where the jurisdiction of this court permits a review of individual procedural and case management directions.”

Summary

129.     The plaintiff has not succeeded on any of the grounds he advanced in his appeals. It follows that the defendants should be awarded their costs. If, however, any party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within twenty one days of the receipt of the electronic delivery of this judgment, and a short costs hearing will be scheduled, if necessary. If no indication is received within the twenty-one-day period, the order of the Court, including the proposed costs order, will be drawn and perfected.  

130.     As this judgment is being delivered electronically, Donnelly J. and Ní Raifeartaigh J. have indicated their agreement therewith and the orders I have proposed.