1. The
defendant seeks to have the plaintiff’s amended statement of claim struck
out in its entirety. He seeks such an order pursuant to the provisions of 0.
19, r r. 27 and 28 of the Rules of the Superior Courts, 1986, and the inherent
jurisdiction of the court.
3. Apart
from these two rules, the court has an inherent jurisdiction to stay
proceedings that are frivolous or vexatious or propound a claim which must
fail. It is this inherent jurisdiction which has largely been relied upon by
the defendant in this application.
4. The
principles upon which the court exercises this jurisdiction have been
considered in a number of cases. In
Barry
v. Buckley
[1981]
306,
Costello J. (as he then was) said at p. 308:-
5. The
jurisdiction was again considered by Costello J. in
D.K
v. King
[1994] 1 I.R. 166 where he repeated the principles enunciated by him in
Barry
v. Buckley.
Having
expressed the view that the plaintiff’s claims were neither frivolous nor
vexatious, Costello J. went on to say at p. 171:-
6. His
approach to this jurisdiction was considered by the Supreme Court in
O’Neill
v. Ryan (No. 1)
[1993] I.L.R.M. 557. Blayney J., at p. 561, expressly approved the approach of
Costello J. in
D.K
v. King
as
being correct.
7. In
view of the fact that this inherent jurisdiction is relied on by the defendant,
it is permissible for affidavit evidence to be adduced. A number of affidavits
have been filed and I will consider their contents in due course. From the
point of view of this application, however, it is conceded by Mr. McDowell on
behalf of the defendant that I must assume
8. This
approach necessarily means that, insofar as there may be conflict between
matters averred to by the plaintiff and the defendant on their respective
affidavits, such conflicts must be resolved in favour of the plaintiff.
Adopting this approach, as I do, I now proceed to consider the application.
9. The
plaintiff commenced these proceedings by the issue of a plenary summons on the
9th May, 1995. The general endorsement of claim claimed damages for breach of
contract, negligent misrepresentation, fraudulent misrepresentation and a sum
of £175,000. In addition, it sought a declaration that the plaintiff was
entitled, as beneficial owner, to one half of the value of a cheque in the sum
of £350,000 dated the 27th September, 1993, and drawn by Maxol Limited on
the Ulster Bank at 2/4 Lower O’Connell Street in favour of Choppard
International Limited. The endorsement of claim also sought a declaration that
the defendant held the sum of £175,000 in trust for the plaintiff or,
alternatively, a declaration that the plaintiff was entitled to such a
proportion of the cheque as to the court seemed just.
10. That
summons was followed by a statement of claim delivered on the 30th May, 1995,
which prayed for the same reliefs.
11. The
present motion was initiated on the 27th June, 1995, and thereafter affidavits
were exchanged. One of the exhibits to an affidavit of the plaintiff sworn in
July, 1995, consisted of an amended statement of claim. I permitted delivery of
that amended statement of claim. This accords with the views expressed by
McCarthy J. in
Sun
Fat Chan v. Osseous Ltd
[1992] 1 I.R. 425 where he said that he inclined to the view that if the
statement of claim in an action admitted of an amendment which might, so to
speak, save it and the action founded on it, then the action should not be
dismissed. It is to this amended statement of claim that Mr. McDowell has
directed his fire, contending that the plaintiff’s claim is not saved by
it. In fact, he says that no part of the statement of claim should survive his
attack.
12. In
the light of this, I must set forth in its totality the amended statement of
claim. It reads as follows:-
13. It
is to be noted that the declaratory relief concerning the beneficial ownership
of the £175,000 sought both in the originating summons and the original
statement of claim has disappeared out of the amended statement of claim. This
was no oversight. In the hearing before me, Mr.O’Loughlin, on behalf of
the plaintiff, expressly disavowed any claim as to beneficial ownership of
those monies. Consequently, the only reliefs which are now sought in the action
arise at common law. No equitable relief is now claimed.
14. The
plaintiff and defendant are both married but not to each other. They cohabited
with each other as though they were man and wife between September, 1985, and
May, 1993. It is common case that the dwelling house at No. 56 Castleknock Park
was purchased in November, 1988, in the joint names of the plaintiff and
defendant. In 1993, the defendant transferred his half share in that house to
the plaintiff.
15. In
May, 1993, the relationship between the plaintiff and the defendant broke down
with the defendant being asked to leave home. This was because he was
intermittently cohabiting with his wife.
16. Subsequently,
the defendant was anxious to re-establish his relationship with the plaintiff.
This occurred in September, 1993, and the defendant moved back in to
Castleknock Park with the plaintiff.
17. In
September, 1994, the relationship again broke down. Again, the defendant was
requested to leave home and did so. These are matters of fact which are not in
dispute between the parties and form the backdrop against which the statement
of claim now falls to be examined.
18. The
first relief which is sought in the amended statement of claim is damages for
breach of contract. On an examination of the statement of claim, it appears to
me that the only contract (apart from the mortgage on 56 Castleknock Park which
is no longer relevant) which is pleaded is a twofold one. The first is an
agreement to marry. The second is an agreement to live together as man and wife
until such marriage would be possible. In consideration of that agreement, the
plaintiff discontinued her business and lived as a full-time housewife and
home-maker.
20. As
to the first, he relies upon the provisions of s. 2 of the Family Law Act,
1981, which abolished the action for breach of promise of marriage. In my view,
that enactment is fatal to any claim which is asserted by the plaintiff to
derive from the breach by the defendant of an agreement to marry her. Indeed,
even before the enactment of the Act of 1981, at common law it had been held in
England that a promise by a married person to marry one who knew that person to
be already married was unenforceable as being against public policy (see
Wilson
v. Carnley
[1908] 1 KB 729,
Spiers
v. Hunt
[1908] 1 KB 720,
Siveyer
v. Allison
[1935] 2 K.B. 403). In the instant case, both the plaintiff and the defendant
at all times knew that they were each married to someone else. Even before the
enactment of the Act of 1981, their agreement to marry each other would have
been unenforceable as a matter of public policy. Subsequent to the Act of 1981,
there can be, in my view, no doubt but that the defendant is correct when he
says that this part of the plaintiffs claim must fail.
21. The
second contractual arrangement alleged by the plaintiff is set forth at
paragraph 8 of the amended statement of claim. It is that, pending marriage,
she would “in the meantime, live with him as a wife might and, in
particular, discontinue her own business and live at home as a full-time
housewife and home-maker”. The defendant contends that an agreement to
cohabit, whether pending a forthcoming marriage or not, cannot give rise to
enforceable rights. This is so whether the parties agree to live together
pending a dissolution of existing marriages or not. It is said that the
enforcement of such agreements would be contrary to the public policy of this
State. It is furthermore said that the present claim in attempting to enforce
this agreement by means of seeking damages for its breach is not actionable as
a matter of Irish law. It is furthermore said that the plaintiffs proceedings
are, in effect, a claim for “palimony”.
22. This
expression “palimony” was much used by Mr. McDowell in the course
of argument but it was never defined nor was any authority opened on the topic.
The Oxford English Dictionary defines it as a slang word of American origin
formed by a blend of “pal” and “alimony” and denoting
“compensation claimed by the deserted party after the separation of a
couple living together out of wedlock”. That it is truly a slang term
appears to be borne out by the fact that amongst the, admittedly relatively
few, text books on American family law available to me, I fail to find a single
instance of the word being used.
23. Historically,
applications to seek enforcement of cohabitation contracts in the United States
have been treated in much the same way as such claims in England. They were
invariably rejected either on grounds of immorality or lack of consideration.
Things changed somewhat with the decision of the Supreme Court of California in
Marvin
v. Marvin
(1976)
18 Cal. 3d 660. That court concluded,
inter
alia
:-
25. Since
the decision in
Marvin
v. Marvin,
some
State courts have been willing to find implied contracts where no express
contract existed. Others have trenchantly refused to go down that path. For
example, the New York Court of Appeal in
Morone
v. Morone
(1980)
429 NYS 2d 592 said that:-
26. It
seems, therefore, that insofar as the jurisdiction where this concept finds it
genesis is concerned, the existence of such a claim is by no means universally
accepted.
27. The
position in England and Wales on the other hand appears to be crystal clear. In
Windeler
v. Whitehall
[1990] 2 F.L.R. 505, Millett J. (as he then was) said:-
28. In
my view, the law in this country is no different and, if anything, would lean
more strongly against such a concept having regard to the special position of
marriage under the Constitution.
29. Agreements
by persons to cohabit have long been held to be unenforceable at common law as
being injurious to morality and marriage. Mr. McDowell relied on the decision in
Beaumont
v. Reeve
(1846)
8 Q.B. 483 in support of his contention that it would be contrary to public
policy to permit the enforcement of the present contract. Whatever may have
been the public policy in England in 1846 when that case was decided, this case
must be decided upon the public policy of this State.
30. That
is to be found in the first instance in the Constitution and, in particular,
Article 41 thereof. In that Article, the State recognises the family as the
natural primary and fundamental unit group of society and as a moral
institution possessing inalienable and imprescriptible rights antecedent and
superior to all positive law. The State pledges itself to guard with special
care the institution of marriage, on which the family is founded and protect it
against attack.
32. Given
the special place of marriage and the family under the Irish Constitution, it
appears to me that the public policy of this State ordains that non-marital
cohabitation does not and cannot have the same constitutional status as
marriage. Moreover, the State has pledged to guard with special care the
institution of marriage. But does this mean that agreements, the consideration
for which is cohabitation, are incapable of being enforced? In my view it does
since otherwise the pledge on the part of the State, of which this Court is one
organ, to guard with special care the institution of marriage would be much
diluted. To permit an express cohabitation contract (such as is pleaded here)
to be enforced would give it a similar status in law as a marriage contract. It
did not have such a status prior to the coming into effect of the Constitution,
rather such contracts were regarded as illegal and unenforceable as a matter of
public policy. Far from enhancing the position at law of such contracts the
Constitution requires marriage to be guarded with special care. In my view,
this reinforces the existing common law doctrines concerning the
non-enforceability of cohabitation contracts. I am therefore of opinion that,
as a matter of public policy, such agreements cannot be enforced.
33. I
am strengthened in this view by the fact that, notwithstanding the extensive
reform of family law which has taken place in this country over the last 20
years, nowhere does one find any attempt on the part of the legislature to
substantially enhance the legal position of, or to confer rights akin to those
of married persons upon the parties to non-marital unions e.g. a right to
maintenance. This absence of intervention on the part of the legislature
suggests to me that it accepts that it would be contrary to public policy, as
enunciated in the Constitution, to confer legal rights on persons in
non-marital unions akin to those who are married.
34. In
the present case, the amended statement of claim makes it clear that the
consideration for the second contract was the living together of the plaintiff
and the defendant with the plaintiff living with him “as a wife
might” and “at home as a full-time housewife and home-maker”.
35. In
my view, the contract contended for here is unenforceable as a matter of public
policy. Whether one calls it palimony or not, it is not capable of enforcement
in this jurisdiction. If the plaintiffs claim is truly a palimony one (which I
doubt), I am of opinion that Irish law recognises neither the term nor the
obligation to which it gives effect. Consequently, it must be struck out. If it
is not a palimony claim, it is clearly an attempt to enforce a contract the
consideration for which is wifely services being rendered on the part of a
mistress. Such contracts were always regarded as illegal and unenforceable and
remain so. A claim of this type arising out of such a relationship must, in my
view, be struck out.
36. In
coming to the conclusion above, I have not forgotten the two English
authorities which were cited by Mr. O’Loughlin on behalf of the
plaintiff. They were
Eves
v. Eves
[1975] 1 WLR 1338 and
Tanner
v. Tanner
[1975]
1
W.L.R. 1346. I do not think that these cases can be of assistance to the
plaintiff.
37. Even
if an implied contract were contended for, the consideration involved would
still render it unenforceable on grounds of public policy.
38. I
hold that the claims for damages for breach of contract must, as a matter of
law, fail. They are struck out.
41. A
claim to recover damages for misrepresentation which causes damage lies in the
following circumstances:-
42. In
the course of the hearing, Mr. O’Loughlin relied upon the House of Lords
decision in
Derry
v. Peek
(1889) 14 App Cas 337. He contended that he has an action against the defendant in
deceit.
43. That
decision regarded actual fraud as being an essential ingredient of the action
in deceit. The essence of the action is dishonesty. A merely negligent
misrepresentation will not suffice.
44. In
order to sustain the common law action of deceit, the following facts must be
established, i.e. they must be pleaded and proved:
45. I
am of opinion that on the basis of the pleadings before me, these five criteria
are met in at least one aspect of the plaintiff’s claim.
46. It
is alleged (and I must assume that the plaintiff will prove) that the defendant
represented to the plaintiff that she would become a director and shareholder
in Choppard International Limited and would share in its profits. She contends
that she discontinued her business on foot of that representation but the
defendant did not arrange for her to become a director or a shareholder in that
company nor did she share in its profits. That claim at least appears to me to
be capable of being separated from the contractual arrangements alleged to have
been made between the plaintiff and the defendant. Mr. McDowell contends that
all of the representations which were made were intended to and did induce the
plaintiff either to agree to marry the defendant or to cohabit with him as a
wife might in the meantime. But under this heading, the plaintiff claims that
not merely did she agree to live with the defendant as man and wife but also
gave up her business with a view to becoming involved in his. That arrangement
is pleaded as part of the cohabitation contract and, insofar as it is, cannot
be pursued. But the allegation of misrepresentation stands separate and apart
from such contract. It is an allegation of a tort. It can stand separate and
apart from the contractual claim. Mr. McDowell contends that if I allow this
claim to remain extant, that would be to permit the indirect enforcement of the
contract. He says it would permit the plaintiff to arrive at the same situation
of benefit simply by framing her action in deceit. No authority was cited to
support Mr. McDowell’s contention that the tort claim must suffer the
same fate as the contractual.
47. It
is possible that the action of the plaintiff in abandoning her business may
have been induced as a result of misrepresentations on the part of the
defendant and insofar as that claim is advanced as an alleged tortious wrong,
it appears to me that it must be permitted to proceed to trial. Whatever
reservations I may have, I cannot at this juncture say that the plaintiffs
claim in this regard must fail. That is the test which 1 must apply.
48. If
the claim for fraudulent misrepresentation is permitted to go to trial, so also
must the claim for negligent misrepresentation since that, in my view, is also
made out on the pleadings. I cannot at this stage say that it must fail.
49. In
the result, the plaintiff’s claim for damages for breach of contract will
be struck out but the claim in respect of damages for misrepresentation will
not.