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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Devrajan v. KPMG & Ors [2006] IEHC 81 (20 January 2006)
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Cite as: [2006] IEHC 81
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Neutral Citation Number: [2006] IEHC 81
[2004 18742P]
BETWEEN
PLAINTIFF
DEFENDANTS
EX TEMPORE JUDGMENT of Mr Justice Hanna delivered on the 20th day of January, 2006
All of the above named defendants have brought motions in these proceedings seeking similar relief. They want the proceedings to be struck out or dismissed on the grounds that they are frivolous and vexatious and/or an abuse of process and, further, on the grounds that the proceedings are statute barred. In addition, all of the defendants seek to have the plaintiff restrained from bringing any further proceedings against the named defendants -commonly referred to as an Isaac Wunder Order - as well as an order directing that any proceedings which the plaintiff might issue upon the making of such an order be deemed to be void and of no effect thereby absolving the defendants from expending time and effort in defending same.
The plaintiff, in turn, has brought motions seeking to amend this statement of claim. For the purposes of this judgment, I am assuming that I would grant the plaintiff the reliefs sought in these motions and, further, would allow any other amendment, if such were possible, that would enable the plaintiff to defeat the motions brought by the defendants herein.
This case proceeded over three days (although none were full hearing days). The plaintiff attended in person on the first two days. On the second day the plaintiff completed his arguments. At that stage, counsel for the first, second, third, fifth, and sixth and seventh named defendants indicated that they wished to seek an Isaac Wunder Order against the plaintiff - the fourth named defendant, it might be the third named defendant in fact, had been the only defendant specifically to mention such relief in its notice of motion. I indicated to the parties that I wished to be addressed the next day on whether or not such relief should be granted in the absence of bringing a notice of motion.
When the Court sat the next morning the plaintiff was not present. His whereabouts were unknown. An effort was made by one of the solicitors for the defendants to telephone the plaintiff. In so doing, she used a number with which contact had successfully been made with the plaintiff on previous occasions. On this occasion, the telephone was answered and then hung up. I understand that a second attempt was made to telephone the number and the phone was not answered. In the circumstances, I formed the view that the plaintiff did not wish further to engage in this application. If he was discommoded in any way he had available to him the mechanism to inform the Court. For completeness, I informed those in attendance that it was my intention to invite the plaintiff not only to make submissions on that issue of law which I had left over to that morning but to make any further oral submissions but to put before the Court any further documentation that he might wish. In any event, I proceeded to hear briefly those submissions from the defendants and reserve judgment.
Background
The plaintiff was a customer of the Trustee Savings Bank in Dublin and the Cork/Limerick Savings Bank which subsequently merged and became known as Permanent TSB. I refer to the bank as TSB throughout the remainder of this judgment. The allegations which he makes relate to the activities of Permanent TSB and its predecessor. He alleges that he and most other TSB depositors between 1958 and 1993 were the victims of fraud due to the manner in which interest in most depositors' accounts was calculated and due to the bank's failure to disclose to its customers the manner in which interest was calculated. In particular, the plaintiff alleges that TSB failed to inform its customers that interest was calculated on the minimum monthly balance in the account and that monies, regardless of the sum, could be held up for up to 60 days in the account without earning interest at all and that monies lodged or withdrawn attracted only 11/12ths of the advertised interest rate, save for monies lodged or withdrawn on the 21st day of any month and withdrawn exactly one year later. He further alleges that depositors were defrauded of the sums they would have received if interest had been calculated on a daily basis compounded annually at the prevailing interest rates. He alleges that he personally was defrauded of the sum of £67.74 by TSB in Dublin in 1990 and approximately by 7p by the Cork and Limerick Savings Bank in 1991. He also alleges that the trustees, servants and agents of TSB and some depositors were "fraudulently enriched" with daily interest on their accounts between 1958 up to the 20th February, 1993, and that this was done in breach of the bank's own rules, the Larceny Act, 1916 and a breach of Trusteeship Law. In addition, the plaintiff alleges that the defendants conspired in a fraud by failing to take steps within their respective powers against Permanent TSB although they were aware of what he describes as "TSB's chicanery" towards most depositors. He further alleges that the assets of TSB belong to its depositors and that the Minister for Finance wrongfully expropriated the proceeds of the sale of TSB in breach of the provisions of the European Convention on Human Rights and the Irish Constitution insofar as same refers to private property rights. In a litany of allegations, some of which were set out in affidavit, the plaintiff also complains that a judge of the High Court acted unconstitutionally in refusing to grant him an injunction, a judge of the District Court acted improperly in refusing to sign a summons, and in addition to all of this, he seeks to involve the Irish Human Rights Commission in these proceedings.
Matters seem to have started off as a result of TSB allegedly wrongfully stopping a standing order payment. Whatever the precise cause of the litigation was, the plaintiff, who originally had instructed solicitors and thereafter represented himself, brought three sets of proceedings against the trustees of TSB including a claim for misleading advertising, all of which was settled in a deed of settlement dated the 2nd September, 1992, and as a consequence of which the plaintiff accepted the sum of £18,780 in full satisfaction of all his claims. Notwithstanding that agreement, the plaintiff then proceeded to bring informer proceedings in the District Court against TSB under s. 8 of the Consumer Information Act, 1978. TSB were ultimately convicted in the Dublin District Court on two charges under that section and were fined £500 in respect of each charge for misleading information. Thereafter it is clear that the plaintiff has been involved in numerous proceedings on his behalf and on behalf of others in this jurisdiction and beyond. All of this litigation has one common feature, namely the issue of the interest rates applied by TSB and the circumstances surrounding same. He has pursued litigation in this jurisdiction and beyond. I am told that he has brought a lot of proceedings against TSB which in recent years have either been dismissed or struck out.
He has been ordered (see Order of the 18th December, 2000, Kearns J.) not to involve himself in way whatsoever, either through discussions, the giving of advice or otherwise, in any complaint or claim whether by legal proceedings or otherwise, which any third party may consider that they have or wish to make arising from any relationship that they may have or had with TSB or any of its associated companies or subsidiaries, successors or assigns.
The allegations briefly stated against the defendants in this case are as follows:-
The First Named Defendant
This defendant is a firm of accountants. It is sued in its capacity as auditor of Permanent TSB in 1990 at a time when the plaintiff says he was defrauded for the sum of £67.74. He makes no claim in fraud against this defendant and his claim is limited to a claim that this defendant certified TSB's accounts and, in so doing, conspired with Permanent TSB in the alleged non-disclosure of material information in application forms and in newspaper advertisements concerning its practice in relation to the charging of interest. He adds a further claim in the amended statement of claim of the 25th April, 2005, where he complains that TSB defrauded the plaintiff and most depositors by non-disclosure of material information in the application for deposit and investment accounts. He also alleges that this and all defendants are guilty of acting in bad faith, misfeasance and malfeasance in public office.
The Second Named Defendant
This defendant, also chartered accountants, certified the profit and loss accounts of TSB from 1989 to 1993. It appears that this defendant acted as auditors to the Cork and Limerick Savings Bank. The plaintiff complains of conspiracy and fraud which resulted in him suffering the loss of 7p.
The Third Named Defendant
This defendant is sued in its capacity as supervisor of, inter alia, TSB and is accused by the plaintiff, inter alia, of acting in bad faith. So too this defendant is accused, inter alia, of malfeasance of public office.
The Fourth Named Defendant
This defendant is the Director of Consumer Affairs. Like all other defendants, the plaintiff alleges that TSB was fraudulently enriching some depositors with daily interest. He alleges that the Director refused to bring a prosecution arising from an advertisement of interest rates appearing in the Irish Times on the 5th July, 1992, (which led to the plaintiff's subsequent private prosecution) and in a subsequent purported amended statement of claim, the plaintiff complains of a purported decision by the Director not to reopen the matters complained of following a request by the plaintiff to do so in 2002.
The Fifth, Sixth, and Seventh Named Defendants
These defendants constitute the Minister for Finance, the Attorney General and Ireland. Against the Minister, it is alleged he acted in breach of duty and in bad faith and in breach of statutory duty. He says that the Minister has benefited from the fraud perpetrated on most depositors and is guilty of fraudulent and unjust enrichment when TSB was sold. He complained against the Attorney General that this officer did not lend his name to the proceedings so that a relator action could be brought and he seeks an order from this Court compelling the Attorney General to do so.
Conclusions
I have considered all of the papers in this case, including the various amendments which the plaintiff seeks to make to his proceedings. I have considered the documents filed on behalf of the plaintiff and on behalf of the defendants. I have heard arguments at some length. I have also had the opportunity to evaluate the plaintiff in person. In describing briefly the issues as regards each defendant above I appreciate that I have given in the most truncated form a flavour of the case which the plaintiff seeks to advance.
Most of the matters in law with which we are concerned are common to each defendant and they make, in effect, the same case. I will deal with each issue in turn.
Fundamental to what I decide hereafter there are two matters of which I have satisfied myself. Firstly, I am satisfied that the plaintiff is engaging in a vendetta against Permanent TSB and, his case against TSB having "run into the sand" so to speak, he is carrying on that vendetta by trying to involve anybody and everybody whom he can associate, however remotely, with the incidents which occurred resulting in the plaintiff suffering a shortfall of a very small amount of money. Secondly, I am satisfied that each and every complaint which the plaintiff had against Permanent TSB was resolved in the deed of settlement above referred to and the plaintiff is seeking to rehash these issues again under different guises and endeavouring to involve different parties.
Order 19, rule 28 and/or the Inherent Jurisdiction of the Court
In addition to what I found above, I am satisfied that the plaintiff has no sustainable claim against any of the defendants either in his original statement of claim or in its amended form, nor would any amendment assist the plaintiff. With regard to the first and second named defendants, I am not satisfied that there is any sufficient proximity shown between deposit holders and those defendants.
The third named defendant is statutorily exempt from the charges levelled against it.
The fourth named defendant is the Director of Consumer Affairs and the Court cannot interfere with the Director in the exercise of his or her function in much the same way that it cannot interfere with the Director of Public Prosecutions in the exercise of his functions.
With regard to defendants 5, 6, and 7, I am satisfied that the Minister of Finance had no supervisory role whatsoever at the date of the matters complained of, and further, I am satisfied that the Attorney General has an unfettered discretion as to whether or not he lends his name to proceedings and convert them into related proceedings. This Court has no jurisdiction to direct that the Attorney General lends his name.
The various documents submitted by the plaintiff constitute a litany of abuse and unsubstantiated allegations against the defendant and, indeed, others who have dealt with the plaintiff in a manner which he did not like. He has persistently alleged fraud against TSB where no fraud has ever been proved against them. He has not substantiated or particularised the fraud which he alleges and has persistently refused to do so. He throws out the allegation of fraud as he did in his submissions before me like confetti.
Order 19, rule 28 of the Rules of the Superior Courts provides that:
"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 be entered accordingly as may be just."
I am mindful of the words of Costello J. in Barry v. Buckley [1981] I.R. 306 where he states, and I quote:-
"This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends upon the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff's case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant."
I am satisfied the plaintiff's claim herein cannot succeed against any defendant and I am so satisfied by reference to the pleadings and to the evidence offered on affidavit. Further, I am satisfied the proceedings herein are vexatious and are designed solely to carry on the plaintiff's vendetta against Permanent TSB. In that the plaintiff has no reasonable chance of succeeding, it is clearly frivolous that he brings this case. As
Barron J. said in Farley v. Ireland (Unreported, Supreme Court, 1st May, 1997):
"If he [i.e. the plaintiff] has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious."
Moving on to the inherent jurisdiction of this Court, I am mindful that if there is a dispute on facts between the parties, this must be resolved in favour of the party against whom the application to strike out has been brought. In this regard, I note that no replying affidavit challenging matters of fact asserted on behalf of the defendants has been filed by the plaintiff. Even if the plaintiff had some prospect of success in any of the claims that he makes contrary to what I have held, this Court still has jurisdiction to dispose of some proceedings if they "will not confer any tangible benefit on the plaintiff or are taken for collateral or improper motives", (see Delaney and McGrath, Civil Procedure in the Superior Courts 2nd ed., (Thomson Roundhall, 2005), para.14-20).
In Riordan v. Ireland (No. 5) [2001] 4 I.R. 463, Ó Caoimh J. cited with approval a decision of the High Court of Ontario in Canada in the case of Re Lang Michener v. Fabian where a number of factors were identified indicating proceedings which were vexatious. They are as follows:-
"(a) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
(b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;
(c) Where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) Where issues tended to be rolled forward into subsequent actions and repeated and supplemented often with actions brought against the lawyers who have acted for or against the litigant in earlier years;
(e) Where the person instituting the proceedings has failed to pay the cost of unsuccessful proceedings; and
(f) Where the respondent persistently takes unsuccessful appeals from judicial decisions."
I am satisfied that these proceedings fall into categories (a), (b), and (c) and possibly (f) above. I do not have sufficient information to determine whether or not categories (d) and (e) above apply. However, it is not an exhaustive list and it is quite clear that satisfying any one of the above tests in the appropriate circumstances would entitle a court to take action to dispose of proceedings.
Accordingly, I am satisfied that whether under Order 19, rule 28 or pursuant to the inherent jurisdiction of this Court, the plaintiff's claim should be dismissed in that it is frivolous and vexatious.
Abuse of Process
I am satisfied that the proceedings herein constitute an abuse of process. These proceedings in my view confer no tangible benefit on the plaintiff. In McSorley v. O'Mahony, (Unreported, High Court, 6th November 1996) Costello P. stated as follows:-
"It is an abuse of the process of the courts 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 and which can confer no gain on a plaintiff."
In my view, it is clear that this litigation can confer no benefit upon the plaintiff. Insofar as he suffered loss or damage or could obtain any relief from the courts, all these matters were properly put to rest when he entered into the deed of settlement with TSB. Further, this litigation, as well as conferring no benefit upon him, undoubtedly causes considerable inconvenience and expense to the defendants. A further element which must be taken into account is my finding that the plaintiff, in my view, is using these proceedings as a vehicle to abuse TSB and to use the offices of this Court and the privilege it confers to make unfounded and outrageous allegations.
Section 16 of the Civil Liability Act, 1951
Section 16 aforesaid provides that satisfaction by any wrongdoer (whether by judgment or settlement) will discharge any concurrent wrongdoer. An exception to this is to be found in s. 18(1)(b) where judgment has been entered against the concurrent wrongdoer but has not been recovered because of inability to pay. The plaintiff was paid pursuant to the settlement with Permanent TSB and, consequently, even if he did have a claim against all or any of the above defendants arising from the circumstances of his complaint (which I have held he does not) then the liability would have been discharged pursuant to s. 16 aforesaid.
The Statute of Limitations Act, 1957
Section 11 of the above Act provides that the plaintiff should have brought these proceedings within six years from the date on which the cause of action accrued. That stage would be the date on which he suffered the loss of which he complains. The plaintiff asserted that in cases of fraud the statute does not apply. This is a mistaken view of the law. Section 71(1) of the Act provides:-
"(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either -
(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or
(b) the right of action is concealed by the fraud of any such person,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it."
It is abundantly clear that the plaintiff was aware of the matters of which he complains in the early 1990s. None of the matters which he alleges against any of the defendants were in any way concealed from him by any of the parties. Accordingly, this claim is statute barred. Two of the defendants have concluded their pleadings and have pleaded the statute. The other defendants have made clear their intention to plead the statute should the matter proceed to defence. On such assurance it would seem to me unfair to put any party to the expense of lodging a defence where they seek to bring a motion and do bring a motion seeking the sort of relief which the defendants seek herein. Accordingly, on the evidence before me, I am satisfied that were this matter to proceed to hearing a court would in all probability hold the plaintiff's claim to be statute barred.
Order 19, rule 5
This order of the Rules of the Superior Court requires that fraud be fully and specifically pleaded:
"(2) In all cases alleging misrepresentation, fraud, breach of trust, wilful or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings."
The plaintiff's pleadings are liberally scattered with allegations of fraud and other wrongdoing but at no place does he seek to itemise the fraud and say where and when this fraud took place and the nature of that fraud.
Inordinate and Inexcusable Delay
The plaintiff has made no attempt to explain why he delayed until the year 2004 to institute proceedings in this matter. Whatever about it being inexcused, the delay is by any yardstick inordinate. In considering this aspect of the case, I must engage in a balancing exercise between the rights of the various parties in order to do justice. Henchy J. said in Ó Domhnaill v. Merrick [1984] I.R. 151:
"In all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."
In Paul v. Dignam (Nos. 1 and 2) [1991] I.L.R.M. 135, at p. 139, Finlay C.J. said:
"… where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action."
It seems to me that in dealing with cases of delay prior to the institution of proceedings the court has a wider discretion (see MacH. v. M, Unreported, High Court, 3rd March, 2004). In that case circumstances were identified where an action could be dismissed even if the court came to the view that the delay might be inordinate but excusable. It seems to me, in the instant case, and given the findings that I have made above, that the delay in bringing these proceedings arose not out of some avoidable happenstance but rather because of the improper motive of pursuit of a vendetta. I feel that it would be grossly unfair to put the defendants to the task of meeting the proceedings in these circumstances. I am satisfied that by any yardstick the delay is inordinate, inexcusable and that the defendants would be prejudiced were they to meet the claim.
Locus Standi
In my view, the plaintiff has no locus standi insofar as he purports to represent the interests of anyone other than himself before this Court. He is not entitled to maintain an action on behalf of other deposit holders, be they named or not.
Isaac Wunder Order
Only one of the defendants has sought this relief in the notice of motion. All of the defendants have asked this Court for it. As noted above, I asked for submissions on whether this could be done and submissions were made in the absence of the plaintiff who failed without explanation to show up. I will assume that he would have urged me not to make such an order and, in any event, should not do so in the absence of a notice of motion.
I am mindful of the fact that this is a rarely invoked relief and must be used sparingly and only in very rare circumstances. However, I am also mindful of what Costello J. said in O'Malley v. Irish Nationwide Building Society (Unreported, High Court, 21st January, 1994) when he said that such an order should be made only in very rare circumstances but should be made when a court comes to the conclusion that its processes are being abused.
In Riordan v. Ireland, (Unreported, Supreme Court, 19th October, 2001), at pp. 9 and 10, Keane C.J. said:-
"It is, however, the case that there is vested in this Court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public office as well as by private citizens. This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation."
This jurisdiction is one, therefore, which as a matter of duty ought to be invoked by the court out of respect not only to the court but also to the Constitution in the appropriate circumstances. Having regard to the findings that I have made in this case, I feel it appropriate that such an order be made in respect of all of the defendants. Accordingly, I order that the plaintiff's proceedings be struck out on the following grounds:-
(a) They constitute an abuse of process of this Court.
(b) They are frivolous and vexatious.
(c) The plaintiff has been guilty of inordinate and inexcusable delay.
(d) Further, I order that the plaintiff be restrained from instituting any further proceedings against the defendants without the prior leave of the High Court.
Approved: Hanna J.