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Riordan v. Hamilton [2000] IEHC 189 (26th June, 2000)

THE HIGH COURT

1999 No.12562P

BETWEEN

DENIS RIORDAN

Plaintiff

AND

CHIEF JUSTICE LIAM HAMILTON, JUDGE DONAL BARRINGTON, JUDGE HENRY BARRON, JUDGE KEVIN LYNCH, JUDGE SUSAN DENHAM, JUDGE FRANCIS MURPHY, JUDGE RONAN KEANE AND JUDGE HUGH O’FLAHERTY (RESIGNED)

Defendants

JUDGMENT DELIVERED EXTEMPORE BY THE HONOURABLE MR JUSTICE THOMAS SMYTH ON 26TH JUNE 2000

Official Stenographer

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APPEARANCES

PLAINTIFF IN PERSON

FOR THE DEFENDANTS:

John Rogers SC

Nuala Butler BL

Instructed by

Chief State Solicitor

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1. This matter comes before me by way of a Notice of Motion grounded on an affidavit sworn by Mr Laurence Farrell on 24th May 2000. This affidavit is uncontroverted. While certain matters have been raised by way of submissions, the affidavit has a number of exhibits attached to it, some of which have been discussed during the submissions.

2. The Notice of Motion seeks five forms of relief. The first relief sought is:

“1. An order striking out the Plaintiff’s claim on the grounds that constitutes an abuse of the process of this Honourable Cot.

That first relief is referable to the case of Barry v Buckley and to other cases of that nature dealing with the inherent jurisdiction of U court.

I do not want to say anything that would add fuel to a fire that is already burning in the background because these matters are the subject of earlier litigation and of matters going back to the Supreme Court or Thursday of this week. I do not want to delay my decision in case it i decided to appeal it on Thursday. However, I do not have the slightest hesitation in dealing with the matter.

At the outset I want to draw attention to a number of matters, the firs of which is that the evidence before me is the evidence in Mr Farrell’s affidavit, the only evidence on which I have to adjudicate. Other than one or two matters drawn specifically to my attention, there does not appear to be any dispute as to the facts.

The interpretation of the facts and the use of particular words or language seems to be of some importance to the Plaintiff Mr Riordan.

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The second point relates to a default in pleading. Mr Riordan has drawn my attention to 0.19, r.13 and it provides exactly as he says. However, if the Defendants were to join issue with the Plaintiff in a situation like this, the point could be rightly taken against them that they had not taken the position of challenging rather than submitting to controversy. Accordingly, the Defendants have opted for the provisions of 0.19, r.28 which are:

“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.”

3. The matter clearly came to be considered by the Defendants under a ran of headings, the first one being under the inherent jurisdiction of the court.

4. I had reason to draw the Plaintiff’s attention to his manner of address and I did so because of the decision in Bloomer and Ors v Incorporated Law Society of Ireland [1995] 3 IR 14 (H.C.); Supreme Court decision delivered on 6th February 1996. That judgment also deals with the position where the court should not be considering submissions consist of contemptuous language and unfounded allegations. It is, of course, possible to criticize people in a civilized way without using such language. Generally, most people disregard the views of others unless they are of the same opinion. It is not, however, a very sound way of testing reasonableness and does not necessarily accord with critical intelligence.

5. Is it an abuse of the process that these matters have now come before the Court? Having considered the matter and the various excerpts from

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the reported cases and as reviewed in the Annual Review of 1996 and 1997 I am satisfied that it would be an abuse of the process of the court to engage in this litigation and I so hold.

6. The second relief sought in the Notice of Motion is:

“2. Alternatively, an order striking out the Plaintiff’s claim on the grounds that it discloses no reasonable cause of action has no reasonable prospect of success.”

7. In this regard it seems to me that there is a distinction to be drawn between the inherent jurisdiction of the court and rule 28, and Mr Rogers has done that. The court may order an action to be struck out before the pleadings are delivered (see: Barry v Buckley [1981] IR 316: Conversely, the application of rule 28 is to those situations where it could be shown from the pleadings themselves that the proceedings are frivolous or vexatious (see: Cavern Systems Dublin Ltd v Clontarf Residents Association [1984] ILRM 24 and McCabe v Harding Investments Ltd [1984] 1 ILRM 105).

8. Mr Rogers and Mr Riordan have spent some time dealing with the question of the jurisdiction of the court. The jurisdiction to dismiss an action ‘on the basis that, on admitted facts, it cannot succeed’ is one the court should be slow to exercise (see: Sun Fat Chan v Osseous Ltd [1992] IR 425). And where a statement of claim admits of an amendment which might save the action, the proceedings should not be dismissed. That was the position taken in the Supreme Court by the late Mr Justice McCarthy. No matter what may arise in discovery or at the trial of the action, a judge acceding to an application to dismiss must be confident that it will be resolved in favour of the defendant’s contention. That decision has been relied on on a number of occasions since. It seems to me that that view is important because Mr Riordan has urged me to see i

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a different way. However, as Mr Rogers acknowledged in his opening submissions, the court should be slow to entertain an application of this kind. Indeed, the dicta of McCarthy 3. in Sun Fat Chan v. Osseou was to the effect that experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings.

9. The position here is that these matters have already been litigated. There is no new matter and this is an effort to re-litigate the same matters and to effectively ask this court to review the decisions of the Supreme Court or to ask another judge to embark upon a hearing at a later stage. In my opinion it is neither open nor would it be appropriate to do so in this case.

10. In the circumstances I will make an order striking out the Plaintiff’s claim on the grounds that it discloses no reasonable cause of action and has no reasonable prospect of success. I do not think it is necessary to rehearse the submissions made by the parties in the last three hours.

11. The third relief sought in the Notice of Motion is:

“3. An order restraining the Plaintiff from issuing any further proceedings against the Defendants to the above-entitled proceedings or any person holding the office of Judge of the Supreme Court without leave of this Honourable Court.”

12. It seems to me that there is a range of proceedings in the nature of serial litigation compounded one on the other and that it should not continue. People who have genuine cases to put before the court should be permitted to have their cases litigated. In McSorley v O’Mahony

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(6th November 1996) Costello 3. indicated that the whole approach to the courts under 0.19 should be clear and exceptional. He went on to say:

‘It is an abuse of the process of the court 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 an’ which can confer no gain on a plaintiff.”

13. In my opinion this present case is litigation of that character.

14. In the circumstances I will make an order restraining the Plaintiff from issuing any further proceedings cause or matter against the Defendants or any person holding the office of Judge of the Supreme Court and of the High Court. Lest anyone should think that I am shirking my duty, am quite happy to be nominated as the judge to whom that reference must be made.

15. The Notice of Motion seeks further relief as follows:

“4. Such further or other order as to this Honourable Court shall seem fit.”

16. Having read the pleadings in extenso during lunch and having listened carefully to Mr Rogers and to Mr Riordan, it seems to me that the provisions of 0.19, r.27 have something to say in this regard:

“The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice embarrass or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.”

17. A number of allegations have been made in the pleadings. The purpose pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such matters when they have nothing to do with any dispute between the

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parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed. The authority for that statement Christie v Christie (1873) Ch.499. “However, any unnecessary matter containing any imputation such as.. .may be struck out as scandalous.” (see: Murray v Epsom Local Board (1897) 1 Ch.35). In the pleadings he there are allegations which are totally unnecessary to any reasonably balanced or strongly held views of a plaintiff as against a defendant. The imputations of character made here would leave a person open to litigation in defamation had they not been accorded the protection of privilege of the court. The pleadings here, it seems to me, are of the character. I need not go through them but merely highlight further what I would regard as contemptuous language and scandalous allegations. I is perfectly in order for a litigant to say that a defendant has acted in a particular way. However, what has been imputed here is not only over the top but is being deliberately used for the purpose of trying advance some view which does not accord with fairness, common sense, justice, constitutional right or with any modicum of decency.

18. Accordingly, I will order that the pleadings in this case be stricken from the record.

19. Having heard the parties on the question of costs, I order that the Plaintiff do pay the Defendants their costs, the costs to be taxed in default of agreement.