High Court of Ireland Decisions

Neutral Citation No: [2007] IEHC 51

THE HIGH COURT

[2006 No. 5987 P]

BETWEEN

JOHN McMAHON AND SHEENA SHARMA

PLAINTIFFS

AND

WJ LAW AND COMPANY LLP, WJ LAW CASTLEBLAYNEY LIMITED, MARY COMER, PETER COMER, CORRIGAN COYLE KENNEDY McCORMACK, AND JJ KEENAN AND SON

DEFENDANTS

RULING of Mr. Justice John MacMenamin dated the 2nd day of March, 2007

1. This is a motion brought by the first and second defendants to strike out these proceedings as disclosing no reasonable cause of action, that the proceedings instituted are frivolous and vexatious, and constitute an abuse of the court process. A further order is sought that the first named plaintiff be prohibited from instituting legal proceedings against the first and second named defendants without leave of this court.
2. The matter came before me on Monday 19^th February, 2007 and was part heard. Counsel on behalf of the moving parties opened the affidavits and cited legal authorities to which reference will be made later. At the conclusion of the applicants case, Mr. McMahon who appeared as a lay litigant indicated, only then, that he wished to have the second named plaintiff Ms. Sheena Sharma in attendance as his "McKenzie friend" i.e. to assist him in making submissions, and also that he wished to file a replying affidavit. In view of the fact that Mr. McMahon represented himself I acceded to this request and, accordingly the matter came before this court again on Monday 26^th February. While there are a number of other motions in being, brought by the plaintiff and the defendants, it was accepted on all sides that this motion should be allowed to proceed first.
3. The application relates to a plenary summons issued on 4^th December, 2006 and a document entitled "plenary summons affidavit and indorsement of claim" dated the following day. An appearance was entered to these documents by Messrs Matheson Ormsby and Prentice the solicitors for the moving parties on 18^th December, 2006. On 10^th January, 2007 the plaintiffs in these proceedings brought a motion for interlocutory relief against the defendants in relation to their possession of certain lands returnable for the 29^th January, 2007. On that date counsel for the first and second named defendants applied for, and was granted liberty, to issue this motion before the court to strike out the proceedings. The matter was returnable for 19^th February, 2007 and came before Clarke J. who transferred it to me for hearing.
4. On 26^th February both the plaintiff and Ms. Sharma were in attendance. Ms. Sharma indicated that she was there only to assist the first named plaintiff and did not wish to participate in the proceedings. She also indicated that it was her intention to withdraw from the proceedings and that she did not wish to play any further part therein. It was indicated to her that upon this basis she should serve a notice of discontinuance and counsel for a number of the defendants reserved their position as to any application they might make consequential upon the service of such notice.
5. This action is the fourth proceeding issued by or on behalf of Mr. McMahon the first named plaintiff relating to lands at Killycard and Bree, Castleblayney, Co. Monaghan (registered under Folio Numbers MN 9975 and MN 10190). By deed of assignment dated 15^th January, 2007 Mary Comer assigned to WJ Law (Castleblayney Limited) (the second named defendants) "all the benefit and advantage of the Circuit Court proceedings together with the costs and all other moneys recoverable under those proceedings where appropriate." Mary Comer is the Legal Personal Representative of the late Peter Shevlin: A Grant of Administration was obtained by her in the said Estate on 23^rd December, 2003.

In the instant proceedings the first named plaintiff Mr. McMahon claims that he is the true and lawful owner of the lands which lands are claimed to have been lawfully left and entrusted to him by way of testamentary gift by Peter Shevlin his cousin. Peter Shevlin died in a road traffic accident in Castleblayney, Co. Monaghan on 21^st March, 2002. Essentially the first named plaintiff contends that over the years a relationship evolved between himself and Mr. Shevlin, who was Mr. McMahon's mother's nephew. The plaintiff contends that during the last period of Mr. Shevlin's life at a time when he was frail and elderly it was understood that he, Mr. McMahon would work the farm and take care of Mr. Shevlin, and that in return the farm would be left to him by Mr. Shevlin. In fact matters did not evolve that way, and as it transpired Mr. Shevlin at the time of his death had not made a will in favour of Mr. McMahon. Instead, he died intestate. The lawful beneficiaries under the will transpired to be his niece Mary Comer the third named defendant and Peter Comer the fourth named defendant who live in the State of New York.

From these events there has now ensued substantial amount of litigation involving allegations of misrepresentation fraud and breach of trust against the Comers, two solicitors firms, the moving parties herein and perhaps others. The first named plaintiff contends that he is beneficially entitled to the lands on foot of the works in which he engaged and by virtue of the understanding which he had entered into with the late Peter Shevlin. It is noteworthy that while some doubts appear to have been raised even as to the existence of Peter Comer and Mary Comer and their relationship to Mr. Shevlin, they were referred to at para. 3 of the plaintiffs own written document as "the American resident long distant nephew and niece", without any such queries.

6. The Various Proceedings

In these proceedings the first plaintiff seeks a declaration that the first and second named defendants who are now the current registered owners of the lands are unlawfully registered on those folios. Here as in three other cases in which the plaintiff herein was a party, the issue is as to the ownership of Peter Shevlin's lands and the disposition of his estate.

7. Circuit Court Proceedings

By way of Equity Civil Bill issued by Mary Comer (the third defendant to these proceedings), Circuit Court proceedings were commenced on 16^th March, 2004 against the first named plaintiff for vacant possession of the lands. In those proceedings the first named plaintiff counterclaimed seeking a declaration that he was entitled to the said lands. These pleas were embodied in proceedings entitled The Circuit Court Northern Circuit County of Monaghan Record No. E8/2004 between Mary A. Comer Plaintiff and John McMahon Defendant.

8. The Circuit Court proceedings were heard on 26^th January, 2006 by his Honour Judge O'Hagan wherein he made an order restraining Mr. McMahon from entering into the lands after the expiration of a three month period from 26^th January, 2006 and requiring him to vacate the lands within the same three month period. It may be seen therefore that the learned Circuit Court judge, while acceding to Ms. Comer's application, allowed Mr. McMahon a period of time to vacate the lands. This order was appealed to the High Court. The order of the Circuit Court was varied on appeal by consent on 21^st February, 2006 to the effect, inter alia that Mr. John McMahon would hand over vacant possession of the lands on or before the 17^th March, 2006. Mr. McMahon considers now, and so asserts that he was ill served by his lawyers on the appeal. He regrets having entered into the settlement and the consent order, and has made a number of allegations against his legal representatives which have not been substantiated or borne out in evidence.
9. The first named plaintiff did not comply with his obligations under the consent order. In fact that order was followed by a number of applications for attachment and committal brought against Mr. McMahon by the Comers. These came before the Circuit Court, and Mr. McMahon was ordered to vacate the lands by 31^st May, 2006, which period of time was subsequently extended to the 11^th July, 2006. It must be said therefore that a considerable degree of indulgence was extended to Mr. McMahon by His Honour Judge O'Hagan the learned Circuit Court judge.

Ultimately on 14^th July, 2006 Mr. McMahon was committed to Castlerea Prison in Co. Roscommon for seven days for contempt of court. On the same day Mary Comer as legal representative aforesaid was granted liberty to enter onto the lands for the purpose of removing livestock, machinery and hay belonging to Mr. McMahon.

On 21^st July, 2006 Mr. McMahon was committed for a further six days for continuing contempt of court and was ultimately released by order of that Court made on 27^th July, 2006.

This court has been referred to a number of exhibits by the Respondent These include, a document entitled "Statement required to Ground Application for Judicial Review" dated 24^th July, 2006, Between John McMahon Applicant and the Director of Public Prosecutions and the Governor of Castlerea Prison The High Court 2006 No. 1019 SS. There, the applicant sought an inquiry under Article 40.4 of the Constitution challenging his detention for contempt of court. It appears that these, further, proceedings were superseded by the order of the Circuit Court made on 27^th July of that year.

10. On 8^th August, 2006 the first named plaintiff instituted a further set of High Court plenary proceedings entitled The High Court Record No. 2006 No. 3715 P Between John McMahon Plaintiff and Mary A. Comer and Peter Comer Defendants. In that plenary summons Mr. McMahon sought damages against Mary Comer and Peter Comer for negligence, breach of duty, breach of contract, negligent misrepresentation and negligent misstatement. Additionally Mr. McMahon issued a motion in those proceedings seeking an injunction restraining the Comers their servants or agents or any other persons whatsoever from entering onto the lands in question. A motion for interlocutory injunctive relief came on for hearing on 23^rd October, 2006 whereupon the proceedings were struck out.
11. The Special Summons

On 1^st November, 2006 the first named plaintiff issued yet a further set of proceedings by way of special summons (No. 544SP/2006). Again the same general reliefs were sought, asserting the right of Mr. McMahon to the lands and denying the right of the Comers. Those proceedings included a number of allegations against lawyers (engaged by the Comers) alleging gross professional and fiduciary negligence and also putting in issue the relationship of Peter and Mary Comer to the late Mr. Shevlin. Ancillary reliefs were also claimed, seeking financial restitution for Mr. McMahon for the works he had done and also restraining any interference with the property. Upon the return date of the special summons dated 23^rd November, 2006 the Master of the High Court apparently indicated that the proceedings had been incorrectly initiated by way of special summons and suggested to the first named plaintiff, that should he wish to proceed further he should proceed by way of plenary summons. An order for costs was also made.

12. This court has been informed that no appeal has been brought by the first named plaintiff against the decision of the Master of the High Court.
13. The Instant Proceedings – by plenary summons

By plenary summons issued on 4^th December, 2006 the first and second named plaintiff (Sheena Sharma) instituted proceedings against the same six defendants as the first named plaintiff had sued in the special summons proceedings referred to above. As appears from the general indorsement of claim in the plenary summons the plaintiffs sought a total of 46 reliefs including declarations that the first named plaintiff was the true and lawful owner of the lands the subject matter of the Circuit Court proceedings as appealed and the High Court special summons proceedings.

14. It may be remarked parenthetically that no relief was sought by the second named plaintiff whose status in the proceedings was, apparently, only to act as McKenzie friend to the first named plaintiff. While Ms. Sharma was in attendance on the court on 26^th February and tendered advices to the first named plaintiff from time to time she did not seek to play any active role in the proceedings. While the first named plaintiff suggested that certain papers, relevant to him, were with Ms. Sharma, she indicated during the course of the proceedings that she had brought to court all relevant documents which the first named plaintiff had sent her.
15. The essential case now advanced by the first and second named defendants, the moving parties herein, as purchasers from Ms. Comer, is that in issuing these proceedings, the first named plaintiff is attempting to re-litigate issues already determined by both the Circuit Court and High Court on appeal. As is apparent from the order of the High Court made on 21^st February, 2006 (Fennelly J. on Circuit) the first named plaintiff in these proceedings through his counsel consented to the variation of the order of the Circuit Court so that vacant possession would be handed over by him on 17^th March, 2006. The case now being made by Mr. McMahon is that there has been a questionable or fraudulent transaction in the nature of a fraud perpetrated. It would be premature to express any view on this issue in this motion.

I have examined the proceedings brought by Mr. McMahon in detail. In the first place, quite plainly they are an attempt to re-litigate the issues which arose in the Circuit and High Court on appeal to which latter order he consented. Mr. McMahon has now submitted to this court that he felt pressurised into entering into the settlement and felt threatened that if the proceedings were to go on he ran the risk of losing his house in legal costs. In order to avoid any suggestion of prejudging other issues still to be determined, the court will not express any view on this contention. What is undisputed, and cannot be disputed, is that there is extant a High Court order, entered into on consent, and that in the absence of evidence of fraud on the court that order must be upheld. Furthermore it has not been demonstrated that any cause of action exists against these defendants who were the purchasers of the lands by deed of assignment.

It will be noted that at para. 36 of the general indorsement of claim the plaintiffs herein seek the following relief

"A declaration that the "Legal vehicle" Special Summons Record No. 544 SP/2006 was not "nullity" and by virtue of that fact the summons and the claims were amended, refiled, re-clarified and added to hereon. A declaration that no order as to costs was or is necessary or legally justifiable to be paid by the first named plaintiff to the first, second, fifth and sixth named defendants …".

16. These reliefs are claimed in relation to the Master's order. However no appeal was brought by the first named plaintiff against that order made on 23^rd November, 2006 and perfected on the 28^th of that month. It has been submitted that it is an abuse of the court process for the first named plaintiff to once again, in another form, seek to re-litigate or appeal in irregular form, an action already determined against him in previous proceedings and moreover in a situation where as a result of the consent order he is estopped from re-litigating those issues. I accept this submission.
17. The Reliefs now sought

The first and second named defendants now additionally seek an order striking out these proceedings, restraining the first named plaintiff from instituting proceedings against them without leave of this court. This is an order known as an "Isaac Wunder order". This application is based upon the persistent institution by the first named plaintiff of frivolous or vexatious proceedings (recited earlier) and the earlier history outlined.

It has been pointed out the first named plaintiff has brought one or more actions to determine an issue already determined by a court of competent jurisdiction; that (while she was active in the proceedings) the second plaintiff could not derive any benefit from the proceedings; that the proceedings had been brought for an improper purpose, and for the purpose of oppressing the first and second named defendants in the use of the lands purchased by them; and in the face of the fact that the issues in question have already been determined. It is uncontroverted that the proceedings herein are being used as a vehicle to resist a costs order made against the first named plaintiff by the Master of the High Court. The first and second named defendants were each awarded costs in the special summons proceedings in the sum of €1,000 inclusive of VAT which said costs have not been discharged by the first named plaintiff despite a written demand been sent by registered post on 19^th January, 2007. I must accept this submission also.

18. In an affidavit sworn on 26^th February, 2006, the first named plaintiff alleges that the first and second named defendants fraudulently purchased the property without auction whilst the ownership was been contested in this court. Allegations are again made against a firm of solicitors. It is said that no probate was taken out on the estate of Peter Shevlin Senior that is the father of Peter Shevlin Junior whose estate is in issue. It is said that the first and second named defendants are owners of land adjacent to the Shevlin lands and that transactions took place between W&J Law and a firm of solicitors who were involved in the administration of Mr. Shevlin's estate. Allegations have also been made as to the lands in question being undervalued, and that they are now worth substantially greater sums than the total value of the estate which is stated to be €3,558,139.65. Whether Mr. McMahon has any locus standi to raise such contentions which prima facie may be ones which might be maintained by the estate may be in issue as well as the evidential basis for these, increasingly serious allegations. No evidence has been adduced as to the relevance of these contentions.

During the course of the hearing on 26^th February Mr. McMahon requested a short adjournment to seek further advice from Ms. Sharma. This was acceded to. Thereafter, on the same day, Mr. McMahon made further submissions to the effect that he was a true owner of the land, that he had been led to believe that he would be the beneficiary by the late Mr. Shevlin, and that the issue regarding the lands is one which went back a number of generations. Mr. McMahon was also permitted to open affidavits which he had sworn in notice of motion against Mary and Peter Comer, as sworn to set aside the whole of the earlier proceedings on the grounds that the settlement had been made and signed under duress, that new evidence had been uncovered, that falsified inland revenue affidavits and false orders had been filed and deposited in court and government offices. This court will express no views on these allegations as these are matters still to be litigated in other motions. It has not been shown that any of these matters are relevant to this motion, or these moving parties

19. The Applicable Law: Motion to strike out the Proceedings

In Fay v. Tegral Pipes and Others The High Court [2005] 2 IR 261 McCracken J. outlined the general jurisdiction of the court to strike out proceedings. He identified the two bases upon which such an application may be brought.

"The first is pursuant to the provisions of Order 19 Rule 28 of the Rules of the Superior Courts 1986 which reads:

"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 to be entered accordingly, as may be just".

In addition to this provision the court has an inherent jurisdiction to stay, strike out or dismiss pleadings where no cause of action is disclosed or if the claim is frivolous or vexatious. This is explained by Costello J. in Barry v. Buckley [1981] I.R. 306 at p. 308 where he said:

"But apart from Order 19, the court has an inherent jurisdiction to stay proceedings and on applications made to exercise it, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie's Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically a jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff's claim must fail; per Buckley LJ in Goodson v. Grierson at p. 765 …"

That judge added

"While the words "frivolous and vexatious" are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming expensive and worrying process of being asked to defend a claim which cannot succeed".

These latter observations of Costello J., specifically approved by the Supreme Court, appear particularly apposite in relation to the proceedings which are the subject matter of this notice of motion. In the light of the circumstances which have been outlined, and in particular the consent order, this court cannot but conclude that the instant proceedings by plenary summons which have been brought, (in the context of the other earlier sets of proceedings) are frivolous and vexatious. It has not been demonstrated that the first named plaintiff is even in a position to assert any cause of action against the moving parties in these proceedings as purchasers and in a situation where the first named plaintiff is not identified in law as a beneficiary. It has not been suggested that there are factual matters in dispute. It has not been suggested that there are issues which require legal interpretation between parties to this motion. Whatever may be the situation between Mr. McMahon and the other defendants (a matter yet to be determined) no basis has been established upon which it can be contended that the proceedings are other than vexatious.

20. Both by virtue of Order 19 Rule 28 and by virtue of the inherent jurisdiction the court would be entitled to strike out these proceedings and considers it must do so.
21. The Isaac Wunder Order

The second essential relief which is sought is in the nature of an "Isaac Wunder" order. The exercise of this jurisdiction is one which I am satisfied, should be exercised sparingly. Among features identified by Ó Caoimh J. in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 as justifying such an order, or militating against the vacating of such an order already granted are:-

1. The habitual or persistent institution of vexatious or frivolous proceedings against parties to earlier proceedings.

2. The earlier history of the matter, including whether proceedings have been brought without any reasonable ground, or have been brought habitually and persistently without reasonable ground.

3. The bringing up of actions to determine an issue already determined by a court of competent jurisdiction, when it is obvious that such action cannot succeed, and where such action would lead to no possible good or where no reasonable person could expect to obtain relief.

4. The initiation of an action for an improper purpose including the oppression of other parties by multifarious proceedings brought for the purposes other than the assertion of legitimate rights.

5. The rolling forward of issues into a subsequent action and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings.

6. A failure on the part of a person instituting legal proceedings to pay the costs of successful proceedings in the context of unsuccessful appeals from judicial decisions.

Prima facie a number of these factors may be present in the instant case. However the court will not at this point make such further order. To do so might have the effect of debarring the applicant entirely from dealing with motions which are presently before the court against other defendants and might constitute an inappropriate delimitation of his right to defend motions which are brought therein by other parties. The court will not therefore make a final order on this aspect of the application but will adjourn that motion pending the outcome of the other motions brought herein both by the plaintiff and by other defendants as moving parties.

Two Observations

I feel that it is important in this case to make two observations.

The matter before this court is a procedural motion. It is heard on affidavit. There is no scope, generally, in such a procedure for oral examination or cross examination. One must remember there are two sides to every case.

It is clear that the facts of this case have given rise to very deep feelings. The plaintiff is now unrepresented. He has discharged his legal advisors. He says other lawyers will not act for him.

He is being supported on each occasion he has attended court by a number of friends and neighbours. I am sure they will have his best interests at heart. There is a risk in any case that deep feelings may ultimately give rise to acts or conduct which are not in the interest of anyone. The plaintiff has already been committed to prison for contempt by order of the Circuit Court.

The plaintiff says he had an understanding with Peter Shevlin Junior. He says that on the basis of this understanding he took care of Mr. Shevlin and his farm. He acted as a neighbour and relative might, I am sure, without the expectation of future benefit.

These issues were litigated in the Circuit Court. Ultimately Mr. McMahon entered into a consent agreement before Fennelly J. in the High Court. The plaintiff did not act in accordance with that consent order. It was for that reason he was twice committed to prison for contempt but released after a short period.

I am sure that the question of a compromise in these proceedings has previously been considered. I think all parties should look at this issue again. But the situation can now be looked at only in the context of the orders of this court already made, unless these are set aside. This is said without prejudice to what may be said in the other motions by or on behalf of either party.

An honourable compromise in any case is far preferable to a futile stand on principle. That is the first observation. In any legal case there may arise questions of moral obligation as well as legal rights. That is the second. The estate is substantial.

In the circumstances I am prepared to request the Chairman of the Bar Council to nominate a mediator. I am conscious that in the instant case this might present particular difficulties. With goodwill these might be overcome. I will adjourn the matter for an appropriate short period in order to allow this to take place if the parties so request. I will hear submissions from both sides only the issue of the time to be allowed.

Approved: MacMenamin J.