High Court of Ireland Decisions

 


HC 299/04

THE HIGH COURT

[2001 No. 3488P]

MICHAEL FOLEY

PLAINTIFF

AND

CATHERINE SMITH

DEFENDANT

Judgement of Mr Justice Vivian Lavan delivered on the 16^th day of July, 2004.

The defendant seeks an order setting aside the plaintiff's claim on the grounds that the matters in question in the proceedings are res judicata. In May 2000, the plaintiff instituted High Court proceedings against the defendant following a road traffic accident. In May 2002, the defendant issued District Court proceedings against the plaintiff, with the plaintiff's insurers acting for him in that regard. However, due to an error on the part of the plaintiff's insurers, the plaintiff was neither present nor represented in the District Court when judgement was obtained against him.

Issues

The issue before the court is whether or not the decree of the District Court binds the plaintiff in the High Court proceedings against the defendant, where both sets of proceedings arose out of the same incident.

Submissions

Counsel on behalf of the plaintiff submits that it was not the plaintiff's omission that he was unable to defend the District Court proceedings; rather, it had been his intention to do so. The issue that the defendant argued as being res judicata, had never been subjected to the scrutiny of a fully contested hearing, and consequently, the plaintiff never had the opportunity to respond to such. It was also submitted that the solicitors for the defendant failed to inform the defendant, within a reasonable period such to allow him to appeal, that judgement had been entered against him.

Counsel cited the decision of Keane J. in McCauley v. McDermott [1997] 2 ILRM 486 wherein the two main principles forming the doctrine of res judicata are set out as;

1. The general interest the community in the termination of disputes and in the finality and conclusiveness of judicial decisions, and

2. The right of an individual to be protected from a vexatious multiplicity of suits at the instance of an opponent.

Counsel suggests that the application by the defendant ought to be considered in relation to an assessment of the conflicting rights of the two parties, namely the constitutional right of the plaintiff to access the courts and alternatively, the right of the defendant to be protected from a vexatious number of suits from an opponent.

In response to the assertion by the defendant, to a right of protection against a multiplicity of actions arising out of the same incident, counsel on behalf of the plaintiff refers to the Supreme Court in Ahmed v. The Medical Council [2004] 1 ILRM 372, wherein Hardiman J. looked to the decision of Johnson v. Gore Wood & Co. [2002] 2 WLR 72, where Bingham LJ stated at p90:-

"…abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not twice be vexed in the same matter."

Hardiman J. continued:-

"Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the Courts for the determination of his civil rights or liabilities. This point has a particular resonance in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, 1950."

The plaintiff submits that the decision in Ahmed suggests that the law applicable to both the principles of abuse of process and issue estoppel, the law as it applies to both, is interchangeable and thus both relevant and persuasive.

In response to the argument put forward by the defendant, in her submissions, that the decision of Cox v. Dublin City Distillery (No. 3) [1923] KB 432 is authority for the proposition that a default judgment does give rise to issue estoppel. Counsel on behalf of the plaintiff, contends that the decision of Cox was made prior to the enactment of the 1937 Constitution, and so before any guarantee to one's right of access to the courts.

It is submitted that the judgement of Hardiman J. in Ahmed is to be preferred, in that it encourages a case by case approach, allowing the examination of the competing rights concerned to determine the outcome. The plaintiff further submits that he does have a constitutional right of access to the courts and that an injustice would occur to the plaintiff if the defendant was successful in the within proceedings.

Counsel also argues that the within proceedings amount neither to a vexatious suit nor a part in a multiplicity of suits directed against the defendant and thus from which the defendant ought to enjoy the protection of the court.

Counsel on behalf of the defendant seeks to dismiss the plaintiff's claim on the grounds that the matters in issue in the proceedings are res judicata. The issue, as counsel for the defendant sees it, is whether or not the decree of the District Court binds the plaintiff.

Counsel referred to the criteria required to invoke the doctrine of res judicata in the context of issue estoppel as set out by Keane J. in McCauley v. McDermott [1997] 2 ILRM 486 at 492, wherein the court cited the decision of Guest L.J. in Karl Zeiss Stifung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853 at 935A:-

"The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel is final; and (3) that the parties to that judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised or their privies."

The decision of Sweeney v. Bus Átha Cliath/Dublin Bus, Unreported, High Court, O'Neill J., 30^th January, 2004, was also cited by counsel for the defendant. In Sweeney, the claim by the defendant, asserting that the plaintiff's claim was barred by virtue of the doctrine of res judicata, failed. The defendant had issued Circuit Court proceedings against the plaintiff, which were subsequently settled, and an order was made striking out the proceedings. O'Neill J. held that a strike out of the proceedings was not a judgement given or a decision made. The court rejected the res judicata argument then went on to look at whether it would be an abuse of process of the court to allow the plaintiff to continue in the High Court proceedings. The plaintiff had not participated in the Circuit Court proceedings and was not aware of the intention to settle the Circuit court proceedings.

In such circumstances, O'Neill J. determined that it was not an abuse of process to allow the High Court proceedings to continue. Counsel states that the decision in Sweeney is distinguishable from the instant case, in that no decision or judgement was made in the earlier proceedings in Sweeney. In the present case, the District Court had heard evidence and pronounced judgement, and the plaintiff had been aware of such proceedings.

Law

The doctrine of res judicata is based upon the principle that a party should not be allowed to re-litigate a matter that he has already had an opportunity to litigate. It is based on the principle of public interest that requires finality in litigation and the private right of an individual to be protected from a vexatious multiplication of suits.

The situation in the present case is such that the High Court proceedings were in being prior to the initiation of the proceedings, on the part of the defendant, in the District Court. Furthermore, it is clear that the plaintiff had the intention of defending the District Court proceedings, but due to an omission on the part of his insurers, was unable to do so. The dicta of Hardiman J. in Ahmed v. The Medical Council [2004] 1 ILRM 372 at p.386 is of assistance:-

"Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the Courts for the determination of his civil rights or liabilities."

The operation of the principle of res judicata requires the court to look at the competing interests of the parties, namely the constitutional right of the plaintiff to access the courts and the opposing right of the defendant to be protected from a multiplicity of suits from an opponent. This is the principle as set down by Keane J. in McCauley v. McDermott [1997] 2 ILRM 486 at p.498:-

"In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgement to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled gain by a law suit which has already been decided."

In the instant case, it is clear that an injustice would be caused to the plaintiff if this Court were to allow the decree of the District Court to overrule the High Court proceedings. Therefore, the request for an order dismissing the plaintiff's claim on the grounds that the matters herein are res judicata, is denied.