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Cite as: [2007] IEHC 411

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Neutral Citation No: [2007] IEHC 411

THE HIGH COURT

[2007 No. 7430 P]

BETWEEN

MICHAEL J. WYMES

PLAINTIFF

AND

THOMAS J. ROCHE, MAURA TIERNEY AND CLAIRE ROCHE

DEFENDANTS

EXTEMPORE JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 26^th day of November, 2007

The first motion is brought by the first named defendant and the second motion is brought by the second and third named defendants.

All the defendants seek an order pursuant to para. C of the notice of motion filed on behalf of the first named defendant seeking an order dismissing or, alternatively, striking out the plaintiff's claims against the defendants on the grounds that the plaintiff does not have any standing or entitlement to maintain the proceedings herein.

In the plaintiff's general endorsement of claim he seeks inter alia an order restraining the first named defendant, his servants or agents and all persons having knowledge of the making of the order from entering into any contractual relations with his wife or on her behalf until such time as she ceases to be subject to coercion and undue influence. At para. 2 of his grounding affidavit, the plaintiff, Michael J. Wymes, deposes:-

"I make this affidavit in support of an application pursuant to the equitable jurisdiction of this honourable Court to prevent any advantage being taken of my wife, Eleanor Roche, by other members of her family in relation to her business affairs".

This is essentially what the plaintiff's claim is about, although I note that Mr. Kilty, on behalf of the plaintiff, sought to widen the purpose by saying, at one point, that the purpose of the proceedings was also to protect the Wymes family.

The defendants rely on the various affidavits filed by them, including the affidavits of Eleanor Roche and of her solicitor, Anthony E. Collins. With regard to the first affidavit of her husband, the plaintiff's wife deposes inter alia that she has retained Anthony E. Collins as her solicitor to represent her interests, that no advantage has been taken of her by members of her family and that she is capable of managing her affairs with assistance from independent advisors. Anthony E. Collins states at para. 5 of his affidavit that he is very conscious of all aspects of his responsibility to Eleanor Roche, including his responsibility to provide independent legal advice solely in her interests, and that this is what he is doing.

In support of his contention that the plaintiff had a right to maintain these proceedings, Mr. Kilty submitted that he was relying on Article 41 of the Constitution, Article 8 of the European Convention on Human Rights, and he also opened four judgments to the Court, namely: (1) Cahill v. Sutton [1980] I.R 269 (a judgment of the Supreme Court); (2) Lawlor v. Members of the Tribunal Inquiry into certain planning matters [2007] IEHC 139; (3) O'Connell v. Cork Corporation [2001] 3 IR 602; (4) Irish Penal Reform Trust Ltd. and Ors. v. Governor of Mountjoy Prison and Ors. [2005] IEHC 305. It is the view of this Court that, in the face of his wife's affidavit, these cases do not provide any comfort for the plaintiff's assertion of his right to maintain these proceedings.

This Court does not have to decide whether the plaintiff had a right to institute these proceedings in the first place, or whether or not it has the equitable jurisdiction the plaintiff contends for.

The Court has considered paras. 46, 47, 52, 53 and 56 in the first affidavit of Mr. Wymes, as well as paras. 154 to 159 inclusive in his second affidavit. The Court also notes what Mr. Kilty has said regarding Eleanor Roche's failure to address a number of matters in Mr. Wymes' affidavit. The Court also accepts Ms. Barrington's submission that Article 8 of the European Convention on Human Rights does not support the plaintiff's claim to maintain these proceedings.

Whatever limited support the case law and affidavits offer the plaintiff, in terms of his right to issue proceedings for the purpose of protecting his wife and protecting his family, as he sees it, they are of no assistance once his wife indicates to the Court that she does not wish the proceedings to be maintained. Once that point is reached, it is clear that her rights are then being breached by the maintenance of these proceedings. Accordingly, the Court will strike out the plaintiff's claims against the three defendants on the grounds that he does not have any standing or entitlement to maintain these proceedings.

Approved: Sheehan J.