High Court of Ireland Decisions

1. In this Judgment I am dealing with Motions brought by each of six of the nine Defendants in this action in which they seek Orders dismissing the Plaintiff's claims against them. The majority of these Defendants invoke Order 19 Rule 27, Order 19 Rule 28 and the inherent jurisdiction of the Court, that is, the majority seek an Order striking out the pleadings on the basis that they are unnecessary or scandalous or that they tend to prejudice, embarrass or delay a fair trial of the action (Rule 27), or they say the pleadings disclose no reasonable cause of action (Rule 28) or they say that upon a general review of the case, including pleadings and evidence, I should conclude that there is no possibility that the Plaintiff can win his case and therefore in the exercise of my inherent jurisdiction I should strike out the Plaintiff's claims.

2. I would point out at the outset that the words "unnecessary", "scandalous" and "embarrass" in this rule have a particular meaning which derives from their context in the Rule book and that this meaning is not the usual meaning of these words; accordingly, legal submissions employing these terms may tend to sound hurtful, aggressive or insensitive in the mouths of lawyers in applications such as the present one in a way which is not necessarily intended.

3. I would also say at the outset that an application such as the present one is dealt with at a technical level; that is by reference to established principles of pleading and by reference to concepts of legal causation and recoverable loss, rather than on the merits of any matters in contention which may be raised or alluded to in the application or in the papers.

4. Thus, for example, in considering these motions I am not concerned with deciding and do not determine the suggestion for example, that the Plaintiff is irrational, violent, obsessional or unintelligent, or the suggestions from the other side alleging institutionalised racism or the more serious allegation linking the activities of some of the Defendants with the unfortunate death of the Plaintiff's father. My only concern is, rather, to reach conclusions on the relatively technical questions of pleading and the processing of the claim as indicated above.

5. I have had the benefit of comprehensive submissions from Counsel representing each of the six Defendants concerned and also a lengthy submission partly in written form and partly delivered orally in Court by the Defendant and I am grateful for the assistance these have given me.

6. The law in dealing with these applications is well established and clear and need not be repeated here extensively by me.

7. The main principles of law may be summarised, not exhaustively, as follows:-

8. Insofar as the applications are based on the allegation that the pleadings disclose no reasonable cause of action I must assume that all of the relevant matters pleaded by the Plaintiff will be established by him; I must also take account of any amendment of the actual pleadings which could "save" the case being made by the Plaintiff. If, as in this case, the Defendants have made it clear that they intend to plead the Statute of Limitations and such a defence is one which in the circumstances must inevitably succeed, then I consider that I should also take that into account in this application.

9. Again, if issues raised between the same parties have already been finally dealt with on the merits by a Court of competent jurisdiction, then again the law of estoppel makes it clear in my view that such issues should not be tried again and the relevant pleadings accordingly struck out.

10. Insofar as these applications are grounded on the inherent jurisdiction of the Court, if I came to the conclusion that it is inconceivable, for whatever reason, that the claim must fail, then I should strike it out at this stage, but, bearing in mind that the Court should be very slow to exercise such a jurisdiction.

11. Finally, where the applications are grounded on the allegation that the pleadings are unnecessary or scandalous or tend to embarrass, prejudice or delay a fair trial I must have regard to the relevance or not of the material on the issues raised.

12. The foregoing is the briefest of summaries of the applicable principles of law which I have said is well established.

13. Broadly speaking the Plaintiff's case originates from a land transaction whereby the first Defendant in 1986 acquired land from the Plaintiff's father surrounding the home of the Plaintiff. The Plaintiff seeks in these proceedings to have that transaction set aside and makes comprehensive allegations of various kinds of wrongdoing against several of the Defendants who at one time or another acted for him or his father as their Solicitor, against the Law Society, and against the first Defendant as current owner and occupier of these lands and against the last three Defendants as representing the State.

14. I now turn to deal with the cases made by each of the Defendants in the same sequence as they were dealt with at the hearing of these motions.

15. This Defendant is The Law Society and the claim in broad terms is that it failed in its obligation to provide the Plaintiffs with a comprehensive list of Solicitors who would be prepared to act in their case.

16. In making this application to have the Plaintiff's claims struck out this Defendant relies on two broad grounds namely

17. In my view this Plaintiff has no conceivable basis for a case that this Defendant did not act in good faith.

18. In my view there is no conceivable basis for a claim made out by the Plaintiffs on the pleadings and accordingly, the claim must be struck out as against this Defendant.

19. The Plaintiff's claim against this Defendant is for

20. In my view having considered the voluminous material placed before me, no cause of action has been made out against this Defendant for these or any reliefs.

21. There are, further, allegations or certainly imputations that the Plaintiff's father was inadequately served by this Defendant in his professional capacity, but, once again, on a review of any material before me, I am driven to the conclusion that no such case could conceivably succeed. I must, therefore, strike out the claim as against this Defendant.

22. Many of the complaints now raised in these proceedings have already been raised and finally determined in proceedings entitled Anthony Kelly -v- William Ewing and Robert Ewing (Nos E21/88 and E31/1988). I have been furnished with a full record of these proceedings and it is quite clear that a number of issues now sought to be raised in the present proceedings were raised and dealt with in the earlier cases. I am satisfied that the following issues raised in these present proceedings have already been dealt with in the earlier cases:-

23. As between the Plaintiff and this Defendant I consider that these issues are governed by the principles of issue estoppel and cannot now be raised again. I have considered the evidence and also the case of S C F Finance Company Limited -v- Masri & Anor (No 3) (1987: 1: Q.B.: 1028) in reaching the foregoing conclusion. I deal with the balance of the claims against the Defendant as follows:-

24. In my opinion no reasonable cause of action is made out in this regard.

25. In my opinion no reasonable cause of action as made out in this regard given that the occasions pleaded clearly enjoy the benefit of qualified privilege.

26. No case is made out on the pleadings for this serious and distressing allegation.

27. No reasonable cause of action is made out having regard to the overall material available before me.

28. Again, having regard to all the material available before me no reasonable cause of action is made out in this regard.

29. In addition to the foregoing I am obliged to conclude having regard to the overall volume of material placed before me that the litigation is extremely onerous to this Defendant and in the circumstances I consider that I am further obliged to strike out the proceedings as against this Defendant pursuant to the inherent jurisdiction of the Court.

30. The case made against this Defendant concerns alleged failure and frustration in regard to the conduct of the Plaintiff's and the Plaintiff's father's earlier civil proceedings.

31. This Defendant submits that the intervention of a Court Order breaks the chain of causation between any alleged wrongdoing and the result, with the consequence that there can be no loss in respect of which the present Plaintiffs could recover and therefore the Plaintiff's father could have no complaints. With regard to the present Plaintiff it is submitted that this Defendant was entitled on the material before me to proceed upon the basis that she was acting for William Ewing, accepted her instructions from him and therefore that these proceedings disclose no cause of action at the suit of this Plaintiff against this Defendant. In my view this submission is correct. It is not open to this Plaintiff to re-litigate his father's case or to attempt to reopen the instructions given by his father to this Defendant. No reasonable cause of action is disclosed and therefore I must strike out the claim against this Defendant.

32. Regarding the several complaints made against this Defendant it is submitted that these proceedings are statute barred given that they commenced in May, 1999 and the matters pleaded against this Defendant occurred between 1975 and 1988. In addition Counsel for this Defendant adopts the submissions already referred to in this judgment in relation to the exercise by me of my inherent jurisdiction. It is also submitted that this Plaintiff has no locus standi to make claims on behalf of his father.

33. In my opinion these submissions are well-founded. It is inconceivable that the Plaintiff's case can succeed against this Defendant and therefore I must strike it out.

34. Similar points were made on behalf of the third Defendant who acted for this Plaintiff's father between May and October, 1988.

35. It seems to me, similarly, that there can be no answer to a plea that the case is statute barred against this Defendant. Accordingly, I strike it out.

36. These Defendants are in a different situation. They are facing a motion for judgment in default of defence. Their submission was to have the time enlarged to enable them to file a late defence.

37. As I explained to the Plaintiff in the course of the hearing it is the virtually invariable practice of the Court to grant such liberty once it appears that a defence might be available to a Defendant, albeit, perhaps, that the enlargement of time would be granted on terms.

38. Accordingly, I propose to give these Defendants two weeks from today's date to file their defences.

39. In conclusion, I wish to repeat what I said at the beginning, namely, that in dealing with the applications I am confined to a consideration of technical issues which are concerned with pleading, the legal concepts of a cause of action, legal causation and recoverable loss, rather than with any evaluation of the matters which are clearly of concern to the Plaintiff and are the subject of his complaint, but which are, in my opinion, incapable of being made the subject of justiciable controversy in legal proceedings in these Courts. I wish to say to the Plaintiff - although it is, of course, gratuitous of me to do so - that the justice which he seeks, and in which he has expressed confidence is not available at the behest of any Court on this earth so far as I am concerned but it may indeed, be available in some more exalted, perhaps infinite, dispensation. It is clear that the Plaintiff has put enormous time and energy into these proceedings and equally that my decisions will be difficult for him to cope with.

40. But apart from the Plaintiff I must also bear in mind the interests of the other parties to this litigation - the six Defendants who have brought these applications. Litigation is onerous and takes a heavy toll of all involved in it. It is my duty if I am convinced, as in this case I am, that a Plaintiff's case has no conceivable hope of success, to strike it out when asked to by the Defendant rather than let it proceed to the cost and pain of all parties involved and with no conceivable legitimate gain. I would add that in reaching my judgment on these applications I have taken into account the vast bulk of documentation and its contents prepared by the Plaintiff and the fact that much of it is irrelevant to any conceivable justiciable issue which could be raised between the parties.

41. It follows from my decision that the Plaintiff's motions for judgment against these Defendants in this case which are before me must inevitably fall with the case itself and these therefore I must also dismiss.