High Court of Ireland Decisions



Lynch v. English & Ors [2003] IEHC 24 (18 June 2003)

THE HIGH COURT

No.2000 11015p

BETWEEN:

PATRICK LYNCH

Plaintiff

and
TERENCE ENGLISH, KEVIN O'FLYNN and SKIBBEREEN DYNAMOS FC LIMITED

Defendants

Note of Ex-Tempore RULING of Mr. Justice Kelly delivered on the 18th day of June 2003.

The aftertaste of the bitter fruits of a failed marriage can linger for many years and that unfortunately is the position in this case.

The plaintiff is a veterinary surgeon. In 1976 he married his wife Carol and there were five children of the marriage. That marriage quite clearly ran into difficulty and resulted in the Circuit Court at Cork making an order for a judicial separation on the 19th May, 1994. As part of the ancillary directions given on that occasion the court directed that twenty nine acres of land at Licknavarr, Skibbereen be sold. The court directed that planning permission be obtained for that land as soon as possible so as to increase the value of the property. As it turned out such planning permission could not be obtained. The order went on to direct the plaintiff to these proceedings to hand over that property on or before the 19th June, 1994 and he was further enjoined from interfering in any way with the sale of the lands.

Up to then these lands were in the ownership of the plaintiff. They had been his for many years and I readily accept that the loss of these lands gave rise to very considerable upset

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on the part of the plaintiff. That upset is understandable but is an unfortunate consequence of a separation where what was formerly a single family unit is divided with increased demands upon the finances as a result.

The order of judicial separation was in turn followed by an order made in November, 1995 appointing the County Registrar to sign all necessary documents for the purpose of transferring the lands in suit contained in Folio 34185 to Mrs. Carol Lynch.

There was much talk of an order having been made in February, 1995 and indeed thought that there was a copy of that order before me on this hearing. That transpired not to be the case. However, in his statement of claim the plaintiff contends on the first page thereof that by a court order of 1995 the title to the land in question was vested in his wife's name. The plaintiff says that that is a typographical in his statement of claim. However, it does not appear to me to make much odds as to whether such an order exists or not because quite clearly the terms of the original judicial separation order were to the effect that the lands would be sold and the order of November, 1995 makes it clear that the transfer of ownership of lands is to be made in favour of the plaintiffs wife with the documentation to be duly executed by the County Registrar. Presumably this was done because of the failure of Mr. Lynch so to do.

On the 14th June, 1996 a formal transfer of the lands in favour of Mrs. Lynch was executed by the County Registrar and thirteen days later a contract for the sale of the lands to the second named defendant in trust for the third named defendants was entered into. It is this contract made by the plaintiff's wife in favour of the third named defendant which has given rise to the present proceedings.

In these proceedings the plaintiff seeks to set aside this sale on the basis that it was an unconscionable transaction being a sale at gross undervalue.

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The second and third defendants apply to have these proceedings struck out of a number of bases. The first is that the plaintiff has no reasonable prospect of success in the proceedings since he lacks locus standi to bring them.

In my view the second and third defendants are entitled to an order striking out the proceedings on this basis. It is well settled law that the court has a discretion to strike out proceedings which have no reasonable prospect of success. That jurisdiction was revived by the decision of Costello J. in Barry v. Buckley, confirmed by the Supreme Court in cases such as Sun Fat Chan v. Osseous and applied by my own decision in Ennis v. Butterly. In my view the present case is one where the court in exercise of that discretion ought to make the order sought.

It is quite clear that at the time of the contract which is impugned in these proceedings was made, title to the lands was vested in the plaintiff's wife. That arose on foot of the original decree of judicial separation and the ancillary directions contained in that order. Those directions were given effect to by the appointment of the County Registrar to execute all necessary documents so as to transfer the lands to Mrs. Lynch. That transfer took place on the 14th June, 1996 and on the 27th June of that year the contract in suit was entered into. At that time the plaintiff had no title to the lands. The only person who could seek to have the transaction in question set aside on any basis of illegality, impropriety or unconscionable bargain is Mrs. Lynch. She is not a party to the present proceedings nor has she ever been. In my view the plaintiff has no locus standi to maintain these proceedings and on that basis alone his action ought to be struck out.

The second and third defendants also contend that the action should be struck out on the basis that the matters which are sought to be raised in these proceedings are already res judicata. They make that argument by reference to two sets of proceedings which have

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conveniently been described as the "trespass proceedings" and the "unconscionable bargain proceedings". Of these two sets of proceedings the latter appear to me to be the more relevant.

Proceedings were brought by the plaintiff against Skibbereen Dynamos Football Club Limited in the Circuit Court at Cork by means of an equity civil bill. In that civil bill he sought to set aside the sale of the lands by the plaintiff's wife to the football club on the grounds that the transaction constituted an unconscionable bargain. That is the same relief as is now sought by the plaintiff in the present proceedings. There was a trial of those proceedings in the Cork Circuit Court on the 28th January, 2000 and the action was dismissed. The plaintiff sought to appeal that order. The evidence is that in July, 2000 Butler J. refused an application by the plaintiff for an enlargement of time so to do. Accordingly, the order of the Circuit Court of the 28th January, 2000 is a final and binding determination of the issues raised in these proceedings which are effectively the same as these. It is in the public interest and in the interest of parties to litigation that once a final and binding determination of issues has been made such issues should not be reopened save in most extraordinary circumstances such as fraud affecting such proceedings. That does not arise here and I am of the view that as between the plaintiff and the third named defendant the issue as to the alleged unconscionable nature of the transaction has been determined in a final and binding way.

The trespass proceedings were ones which were brought at the suit of Skibbereen Dynamos Football Club against the plaintiff. At first, an interlocutory injunction was granted against the plaintiff in these proceedings on the 7th May, 1997 at Cork Circuit Court. On the 24th October of that year on the trial of the action perpetual injunctions were granted against the plaintiff. The evidence is that that order was made by the court determining that Skibbereen Dynamos Football Club was the owner of and entitled to possession and occupation of the lands. There was an appeal taken against that order which was dismissed by Laffoy J. on the 3rd July, 1998. The determination of these proceedings in a manner adverse to the plaintiff having

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regard to the defence delivered in those proceedings adds weight to the basis for making the orders sought but is not determinative of the issue. The proceedings referred to in the last paragraph are however determinative of the issue.

Insofar as the second named defendant is concerned he was acting as the solicitor and agent of the third named defendant and therefore was their privy. Consequently having regard to the decision of the Supreme Court in McAuley v. McDermott [1997] 2 ILRM 486 am of opinion that he is likewise entitled to have the proceedings struck out as against him.

There will therefore be orders striking out in limine the proceedings brought by the plaintiff on the basis that they have no reasonable prospect of success and that the matters which are sought to be litigated have already been the subject of a final and binding determination made in a manner adverse to the plaintiff.

Insofar as the third leg of relief which seeks in effect an 'Isaac Wunder' order the plaintiff has indicated in open court that, apart from appealing the order which I now make, he has no intention of commencing any other proceedings arising out of this transaction. He has undertaken not to do so. On the basis of that undertaking it is not necessary to grant the 'Isaac Wunder' order since the undertaking has the same effect.