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Neutral Citation: [2015] IEHC 72 THE HIGH COURT Record No. 2012/7102P BETWEEN:- WILLIAM BULLEN AND JACQUELINE BULLEN PLAINTIFFS -AND-
BRENDAN O’SULLIVAN AND EILEEN O’SULLIVAN FIRST AND SECOND NAMED DEFENDANTS AND
DIARMUID McCARTHY TRADING AS DIARMUID McCARTHY AND ASSOCIATES THIRD NAMED DEFENDANT AND
DENIS A. O’DONOVAN, FLORENCE MURPHY, MARY JO CROWLEY, MARGARET COLLINS AND FIONA HURLEY PRACTISING UNDER THE STYLE AND TITLE OF O’DONOVAN MURPHY AND PARTNERS SOLICITORS FOURTH TO EIGHTH DEFENDANTS JUDGMENT of Ms. Justice Donnelly delivered the 12th day of February, 2015. Introduction 2. The first and second defendants (hereinafter “Mr. and Mrs. O’Sullivan” or “the O’Sullivans”) have sought orders pursuant to the inherent jurisdiction of the court and/or under RSC O.19 r.28 striking out or dismissing the plaintiffs’ claims on various grounds of abuse of process, oppression, that they are frivolous and vexatious, that they disclose no reasonable cause of action and/or that they are bound to fail. These defendants also maintain that the Plaintiffs’ claims are res judicata. They claim that further and in the alternative the plaintiffs’ claims could have been brought forward in previous proceedings. The first and second defendants also seek to restrain the plaintiffs from instituting further proceedings against the first and second defendants without the leave of the High Court - an Isaac Wunder order. 3. The third named defendant (hereinafter “Mr. McCarthy”) seeks identical relief against the plaintiffs. 4. The fourth to eighth defendants (hereinafter “O’Donovan Murphy”) seek similar orders. They also claim that the proceedings are statute barred, that the plaintiffs are guilty of laches and/or inordinate and/or inexcusable delay in the issue and that the plaintiffs have not brought the present proceedings for a bona fide purpose. These defendants also claim that the plaintiffs are not coming to court with clean hands having reneged on an earlier Circuit Court Consent Order and settlement. 5. The plaintiffs (hereinafter “Mr. and Mrs. Bullen” or “the Bullens”) had sought judgment either in default of appearance or defence against the various defendants. It appears that that motion was adjourned and Mr. McCarthy and O’Donovan Murphy issued their motions seeking this relief. I determined that it was appropriate to hear those applications prior to a determination of the motions for judgment. 6. At that hearing of the motions brought by Mr. McCarthy and O’Donovan Murphy, counsel for Mr. and Mrs. O’Sullivan informed the Court that he was seeking to issue a motion and have it made returnable for hearing in tandem with the other applications. Counsel stated that it was identical to that of the other motions and that the same issues of fact and law would arise. Mr. and Mrs. Bullen who were lay litigants, assisted by McKenzie friends, sought time to consider that motion and I granted same. Thereafter I proceeded to hear the motions of Mr. McCarthy and O’Donovan Murphy and set aside a separate hearing date for the motion to the brought by the O’Sullivans. I indicated that I would give a composite judgment in relation to all of the motions. Procedural issues 8. Mr. and Mrs. Bullen questioned how the solicitor for Mr. and Mrs. O’Sullivan could aver that he only heard of the other motions at a late stage. They raised an issue as to why a request for an adjournment of that motion had been made on the basis that a further affidavit was due to be filed when no such affidavit was filed. They objected to the late filing of this motion on the basis that it caused them hardship due to their ill-health and the burden they have in travelling from England. 9. Mr. and Mrs. Bullen also questioned the bona fides of the solicitor for Mr. and Mrs. O’Sullivan when he swore that he did not know of the motions until he was telephoned by their McKenzie friend in October 2014. They say that the other defendants had raised the issue of an adjournment for the purpose of bringing the motions to dismiss in the course of an application relating to the motions for judgment heard in May 2014. On that basis, they say he must have known of the proposed action. 10. I am satisfied that it is proper to hear and determine the motion on the basis of the contents of the affidavits. I have been told that the present counsel did not appear at the hearing of that motion for judgment and that a town agent may have appeared. An appearance was entered. In any event, I do not accept that the solicitor for Mr. and Mrs. O’Sullivan was misleading the court in terms of the averment he made as to his knowledge of the situation. Furthermore, given the history of the proceedings, there is every reason to believe that if he had known of the motions, he would certainly have advised in relation to the pursuit of same. 11. Most importantly perhaps, I do not consider the “delay” in issuing the motion a matter that compels the refusal of the reliefs. I am also of the view that nothing in any sense new or unexpected arises in this motion. It is substantially the same as the other motions. Even allowing for the indisposition of Mr. and Mrs. Bullen, I am satisfied that it is in the interests of justice that I proceed to determine the substantive issues that arise in the motion. The background 13. The land of the O’Sullivans was set out in a master Folio. It was from that master Folio that the land sold to the Linters became a separate Folio. The same map was used for the transfer by the Linters to the Bullens. 14. It appears that at some point later, the Bullens and the O’Sullivans agreed that additional land would be sold to the Bullens from the O’Sullivans. At the core of this dispute is the question of the boundaries to the Bullens’ property. It appears that all parties accept that the initial map of the Bullens’ property, i.e. the map that was attached to the Folio relating to the land that had been sold to the Linters from the O’Sullivans and subsequently to the Bullens, was incorrect. 15. It is the contention of all the defendants that the map did not correctly identify the boundaries of the Bullens’ land in that some of the land they physically occupied was not included and some property they were not apparently occupying was included. Each of the defendants asserts that a Deed of Rectification was agreed upon between the O’Sullivans and the Bullens and that a map was drawn up by Mr. McCarthy to reflect the content of the Deed of Rectification. 16. A transfer dated the 3rd of March, 1999, is exhibited at DMcL1 in the Affidavit of Daniled McLoughlin, solicitor for Mr. McCarthy. This transfer (referred to in the Affidavit and in the submissions of all defendants as a Deed of Rectification) is apparently signed by Mr. and Mrs. Bullen and Mr. and Mrs. O’Sullivan. This records a transfer of land from the O’Sullivans to the Bullens in consideration of a transfer of land from the Bullens to the O’Sullivans and the payment of €4,500.00 in part consideration. Again, it appears that O’Donovan Murphy acted for both the Bullens and the O’Sullivans in that transaction. 17. Mr. and Mrs. Bullen do not accept the characterisation of what took place between themselves and the O’Sullivans. They also do not accept that any transfer adequately rectified boundary or contractual disputes. They have a grievance because they say that they had in effect to buy land from the O’Sullivans that they claim was already transferred to them by the Linters (who they say had bought it previously from the O’Sullivans). 18. Mr. and Mrs. Bullen assert that Mr. O’Sullivan’s interaction with them over the land dispute was not conducted by him on a civil and proper basis. They maintain that they were in correct occupation of land and were being threatened with trespass. 19. It appears that the O’Sullivans sold other land to people called the Fearons. Part of the land that was purchased by the Fearons comprised of the land that was to be transferred from the Bullens to the O’Sullivans in the said Deed of Rectification. Circuit Court proceedings were issued on the 20th of January, 2004, in which the Fearons and the O’Sullivans were the plaintiffs and the Bullens were the defendants. Chief among what was sought in those proceedings was specific performance of the Deed of Rectification made between the O’Sullivans and the Bullens. 20. On the 25th of October, 2005, a settlement was reached in relation to those proceedings and a written agreement was handed in and made a rule of court. The court order dated the 25th of October, 2005, records that it was settled on the terms of the consent in writing executed by the parties and their respective solicitors. It is important to note here that the solicitors for Mr. and Mrs. Bullen in those proceedings were not O’Donovan Murphy. They were represented by a separate set of solicitors namely John J. M. Power and Company and in particular by Una Power of that firm. It should be noted at this point that O’Donovan Murphy acted as solicitors for each of the plaintiffs in the Circuit Court action i.e. they acted for the O’Sullivans and the Fearons against the Bullens. 21. The Order of the Circuit Court records in material part the following:
23. Prior to entering the above settlement, on the 6th of April, 2004, the Bullens had issued a plenary summons in the High Court in relation to issues concerning the various transactions and the land boundaries. Those proceedings had been issued against O’Donovan Murphy and Mr. McCarthy for, inter alia, negligence, breach of duty and/or breach of contract. It appears that fact was known to O’Donovan Murphy Solicitors at the time of the settlement in October 2005 but was unknown to Mr. McCarthy. 24. Mr. and Mrs. Bullen did not accept the settlement terms of the Circuit Court proceedings and in June of 2008, liberty was given to them to amend their plenary summons of 2004 by adding a claim, inter alia, to have the property settlement of October 2005 set aside. In those 2004 High Court proceedings, the Bullens also obtained further court orders granting liberty to join the O’Sullivans, their solicitors, John J. M. Power, and the Fearons as co-defendants. At that point, every party involved in the settlement of the Circuit Court proceedings and both sets of solicitors who had represented the Bullens in respect of the property transactions or proceedings related thereto was involved in the High Court proceedings. The claim against the Fearons was dismissed by order of Hedigan J. dated the 27th of April, 2009. Mr. and Mrs. Bullen appealed to the Supreme Court but subsequently withdrew that appeal. 25. The case proceeded to hearing before Hanna J. over two days on the 31st of May, 2011 and the 1st of June, 2011. Mr. Neal Woodley gave evidence for the plaintiffs. Mr. Woodley is the partner of the daughter of Mr. and Mrs. Bullen. An order was made by Hanna J. that the said plaintiffs’ claim be dismissed and that the proceedings herein be struck out. 26. Mr. and Mrs. Bullen represented themselves in High Court hearing in 2012. They also represented themselves before me. And were assisted by their daughter in the first motions. On occasions she read her mother’s words directly. At the hearing of the O’Sullivans’ motion, they had another McKenzie friend, who was apparently unrelated to them. In the circumstances of their ill-health, I permitted their McKenzie friend to address the court. 27. At the hearing of the final motion, their McKenzie friend made reference to the transcript of the hearing before Hanna J. There was no objection to its production and it was submitted to me. I consider that it is permissible for the court to look at a transcript when considering issues of res judicata and indeed questions of abuse of process arising out of previous proceedings. Support for that is to be found in the judgment of O’Hanlon J. in Kelly v Ireland [1986] ILRM 318 in which he approved of a passage from the judgment of Lord Wilberforce in Carl Zeiss Stiftung v. Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853 which contained the following:
29. The Order of the High Court records that the Bullens’ claim be dismissed and that the proceedings therein be struck out. 30. The present proceedings were issued by Mr. and Mrs. Bullen on the 19th of July 2012. The submissions 32. The defendants rely upon the well-established principles set out in the case-law regarding res judicata, abuse of process and frivolous and vexatious proceedings. They say that the history of the proceedings, comparison of the various pleadings and consideration of the Orders made in the Circuit Court and the High Court demonstrate that this is an appropriate case in which to make the orders sought in the notices of motion. 33. Mr. and Mrs. Bullen, while continuing to assert their clear dissatisfaction with the entire transactions and the legal proceedings which ensued thereafter, essentially make the case that these proceedings should be allowed to continue as the settlement and the subsequent decision of Hanna J. were procured by fraud. In particular, they say that they could not have brought certain matters forward before the court because certain documentation was concealed from them. At para. 6 of their affidavit in response to the first two motions, they say-
35. Before me, it was submitted by the Bullens that they weren’t allowed their file by O’Donovan Murphy. They claim that this file shows that they were mislead as to where the boundary was and they claim that O’Donovan Murphy knew this. Although some extraneous documentation was handed to the Court (mainly maps and photographs), the precise documents that they submit shows fraud was never clearly identified on affidavit. It is understood that their main complaint is that the documentation would show that there was a difference in the area of the site they say they bought from what the maps recorded. 36. In their affidavit responding to O’Sullivan’s motion, Mr. and Mrs. Bullen state that there was fraud in the case. They stated that they pleaded to have their entire summons heard but that Mr. Justice Hanna refused to let them do so. They say that he chose to hear the “set aside” agreement first. They also say that Mr. Justice Hanna said that there was no fraud in the case and he did not want to hear the word fraud again. A comparison of the pleadings 38. In the 2004 proceedings, there was a claim for loss and damage, etc. because of miscarriage of justice, (deliberate or otherwise) caused by the defendants. Another claim was for the return of their property which they never parted with or never acquiesced in. A further claim was made for the restoration to the plaintiffs of their property in its original status. There was a complaint about the devaluation and deterioration of their property as a result of works carried out by the co-defendants. There was also a claim to have the lawful boundaries of their property registered in the Land Registry and to remove the parties who are trespassing on their property. It is of note that in the 2004 proceedings, the plaintiffs explicitly claim to have the settlement of the 25th of October, 2005, set aside as being signed under duress. In the current proceedings, they make no such explicit claim. 39. In the current proceedings, there are also claims for orders against each “group” of defendants. By “group” I mean Mr. and Mrs. O’Sullivan are treated as one set, Mr. McCarthy as another and finally the solicitors O’Donovan Murphy are treated as another. Indeed the Bullens’ pleading group the defendants and that makes identification of the issues and parties easy to follow. 40. A variety of orders are sought against each group. For example, as against Mr. and Mrs. O’Sullivan orders are sought seeking them to account in respect of the swindling that took place when maps were prepared and submitted to the Land Registry where they literally deprived Mr. and Mrs. Bullen of their rightful property. They also claim a return of the money which Mr. O’Sullivan allegedly extorted money from the plaintiffs when he varied and increased the amount he demanded as time progressed for land that was fraudulently omitted from the plaintiffs’ Folio when the maps were submitted to the Land Registry for registration. It is alleged that Mr. O’Sullivan knew he had sold the same land to the Linters in 1991 and then in turn sold the land to the plaintiffs in 1988. 41. As against Mr. McCarthy in the current proceedings, there are claims in relation to fraudulent production of incorrect maps of certain areas when he was knowingly aware that the areas he did not include in the maps were the property of the Bullens. It is claimed there was fraudulent collusion with Mr. O’Sullivan to dispossess the Bullens of their property. 42. It is further claimed that Mr. McCarthy was guilty of neglect of duty in relation to the maps of land he produced in 1993 for the O’Sullivans which said land they later sold on to the Linters and which Mr. and Mrs. Bullen in turn purchased from the Linters in 1998. There is a specific claim that Mr. McCarthy was guilty of concealing vital information from the Bullens regarding their property. There is also a claim that Mr. McCarthy had speculated that a dog security fence was the legal boundary of the Bullens’ property when he was fully aware that the boundary was otherwise. 43. As against O’Donovan Murphy, the main claims in the current proceedings are of negligence and breach of duty but it is also alleged that they colluded with the other defendants to deprive the Bullens of their property or to assist the first and second named defendants to acquire land that they were not entitled to acquire. It is also claimed that they represented the Fearons and the O’Sullivans at a time when they knew that they were trespassing on the Bullens’ land. It is claimed that O’Donovan Murphy were aware that the map produced by the third named defendants was incorrect, fraudulent and damaging to the plaintiff. 44. The statement of claim in the 2004 proceedings made claims about the representation the Bullens received by O’Donovan Murphy in particular in circumstances where O’Donovan Murphy had not, it was alleged, disclosed that they had represented the Linters in the transaction of sale. There were also claims about their representation of the Bullens at the same time as they were solicitors for the plaintiffs in the Circuit Court action. There were pleas in respect of the alleged failure of O’Donovan Murphy to deliver true maps to the Land Registry. 45. As against the O’Sullivans, it is claimed in the current proceedings that they were guilty of twice selling some of the same property, of false charges made in the equity civil bill and of acquiring property from the plaintiff through threats and bullying. Mr. and Mrs. Bullen make a claim against Mr. O’Sullivan that he abused his constitutional right of access to the courts when he instituted the Circuit Court proceedings in abusing their rights when he knew they were not trespassing but on their own legal property. 46. Examination of the statement of claim in the 2012 proceedings shows that there is no express plea in relation to newly discovered evidence of fraud. There is a claim at para. 16 that the Bullens were to learn later that the maps Mr. McCarthy had produced were wrong. The 2004 proceedings essentially made the claim that he had not produced a proper map to include all the property the plaintiffs had purchased from the Linters. 47. Counsel for the various defendants relied upon various motions and affidavits in the 2004 proceedings to illustrate the nature of the claims being made by Mr. and Mrs. Bullen in those cases. I will refer in more detail to aspects of those below. However, as an illustration, counsel for Mr. and Mrs. O’Sullivan refers to affidavits sworn by Mr. and Mrs. Bullen in the 2004 proceedings. At paragraph 14 of an affidavit dated the 6th of June, 2008, it was averred -
The Circuit Court proceedings 49. In the Circuit Court case of Kinsella v. Connor [1942] 76 I.L.T.R. 141 at 142 it was held that the fact that the consent was made a rule of court does not amount to a judgment of the court and cannot create an estoppel by record. Paul A. McDermott in The Law on Res Judicata and Double Jeopardy (Butterworths, 1999) notes that it is difficult to reconcile this conclusion with older Irish authorities which suggest that consent orders made a rule of court can grant an estoppel unless one views such cases as really being based on estoppel by conduct and not res judicata. 50. The resolution of that issue is not necessarily required in this judgment. That is because the issue moved on and the Bullens sought to set that judgment aside by an amendment to the plenary summons that had already been issued by them in 2004. Generally applicable legal principles 52. By contrast, the court is entitled to make a broader enquiry into the context of and the background to the proceedings when exercising its inherent jurisdiction. Costello J. in Barry v. Buckley [1981] IR 306 at p.308 stated:-
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 on 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.” Res Judicata The High Court Order of 1st June 2011 56. From what has been set out above, the major claims of Mr. and Mrs. Bullen in the current proceedings arise out of the same set of transactions, representations, proceedings and agreements pleaded in the 2004 proceedings. As to any assertion that fraud is now being alleged in the 2012 proceedings and was not raised in the 2004 proceedings, that is not the true position. 57. Fraud was at the forefront of those proceedings from the moment that the Bullens sought to join the further parties. In relation to the amendment of the 2004 proceedings, the motion issued by the plaintiffs seeking an order to set aside the settlement proceedings in the Circuit Court was based upon a statement that new evidence had uncovered fraud, falsified maps, false charges, collusion, distortion and forgery of documents contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001 and contrary to their rights under the Constitution and under the Charter of Fundamental Rights of the European Union. It was stated that the Bullens had new evidence referring to various dimensions of the dispute property, together with various maps for the same property and different owners for the same property. They alleged a cover up. 58. Fraud was alleged in those 2004 pleadings as against the defendants. It was alleged that the O’Sullivans were guilty of conspiracy to defraud the plaintiffs. Conspiracy between the O’Sullivans and O’Donovan Murphy and with Mr. McCarthy was alleged. Mr. McCarthy was also accused of being guilty of concealing vital information. In relation to O’Donovan Murphy, it was said that Mr. and Mrs. Bullen had discovered at a later date that a larger section of their property was added to the original contract when they were transferring a small section of their property to the O’Sullivans. They make reference to “this swindling contract”. 59. The primary claim made by Mr. and Mrs. Bullen in their statement of claim dated the 12th of November, 2008, was one for damages together with an indemnity in respect of losses sustained by them as a result of entering into the purported settlement of October 25th, 2005. Those proceedings were primarily directed towards overcoming the settlement that has been made a rule of court in the Circuit Court by alleging duress. I would agree with the characterisation of those proceedings contained within the affidavit filed on behalf of Mr. McCarthy grounding his motion as follows: “It would appear that the Bullens were looking to retain lands they had previously transferred and in addition to overcome the settlement that was made a rule of court in the Circuit Court by alleging duress.” 60. From the transcript placed before me, it is now clear that the manner in which that case proceeded was that the learned trial judge took the view that central to the entire issue was the settlement proceedings in the Circuit Court. He was of the view that if he were to set it aside, the matters could proceed before the Circuit Court on the title, ownership and boundary issues. On the other hand, if the settlement was valid, no such issues could arise. His attention was specifically drawn to that part of the settlement through which all rights of action, if any, against O’Donovan Murphy and Mr. McCarthy had been expressly concluded in the terms of the settlement. It is not entirely clear that if he had set aside the settlement that all of the issues pleaded in the statement of claim could have been dealt with in the Circuit Court, as for example neither Mr. McCarthy nor O’Donovan Murphy were party to those proceedings (although the conclusion of claims against them were included in the settlement). 61. The present proceedings do not include a claim for the setting aside of that agreement. However, the majority of the claims made against the O’Sullivans relate to issues concerning title, ownership and boundary. The High Court has determined that they are all matters covered by the settlement. I am of the view that in so far as Mr. and Mrs. Bullen seek to undermine the title to the land, ownership and boundary issues, the decision of Hanna J. resolves the matter. Those issues were at the core of the findings of the learned trial judge in relation to the rejection of the application to set aside the agreement. Those issues have been determined against them. 62. In making his determination in the manner that he did, the trial judge determined the entirety of the issues raised by Mr. and Mrs. Bullen. It is necessary that there was a decision on the merits of the case (or at least a decision based upon a hearing where the merits of the case could have been argued) for res judicata to apply (see Laffoy J. in Dalton v Flynn 20th May, 2004). In these circumstances, the merits of a case are determined where the issues are raised before the court and are determined. In so far as it is argued that no evidence as to fraud was actually lead at that hearing, that was a matter within the control of Mr. and Mrs. Bullen at that time. In so far as Mr. and Mrs. Bullen seek to assert that the judge erred in his treatment of their case in deciding to focus on the set aside issue and by reference to his decision as to fraud, the law is that even if I were to find such an error, this would not affect the conclusive nature of the judgment (see Belton v. Carlow County Council [1997] 2 ILRM 405). 63. The learned trial judge reached a conclusion that the entirety of the claim being made by Mr. and Mrs. Bullen could be determined by reference to the validity of the settlement agreement that they had made. He dismissed their entire proceedings. That was a final and conclusive decision on the merits of the action concerning these parties. Thus, even though matters had been raised by the Bullens which went beyond the pleadings in the Circuit Court, these were rejected by the learned trial judge in his decision to dismiss their case based upon his finding that the Circuit Court settlement covered all the matters that they raised in the proceedings before him. 64. The claim against the O’Sullivans for abuse of the constitutional right of access to the court was not pleaded in the 2004 proceedings. It may well be a novel type of claim. Counsel for Mr. O’Sullivan says that it is not known to the law and is not a pleading that could possibly succeed. I do not believe that the issue of whether that is truly the position can be dealt with at this stage. Indeed, it is an interesting question whether litigants who abuse the process of the courts with repeated applications could be liable in damages (and not merely costs) arising out of the necessity to defend of those proceedings. The issue arises as to whether this new claim is res judicata in these circumstances. It is absolutely clear however that this plea is inextricably bound up with the very issues that were central to the Circuit Court proceedings and the subsequent High Court case, i.e. the trespass to the land. The claim under this heading is simply a claim that the same alleged facts give rise to a claim under a different point of law. A claim for personal injuries which fails in tort but is brought again for breach of contract would be res judicata (see McGuinness v Motor Distributors [1997] 1 IR 172). 65. Arising from the foregoing, it is quite clear to me that all of the core issues raised in the current proceedings were dealt with in the 2004 proceedings. Indeed it is true to say that all of the issues raised now have already been dealt with, as any difference in emphasis is slight and does not affect the identification of one issue with another. Those other issues are entirely ancillary or incidental to the core complaints raised by the Bullens in the 2004 High Court proceeding. Hanna J. heard their case and rejected it completely. 66. I am quite satisfied having regard to those findings which I have made after careful consideration of all the relevant material that all of the claims in the current proceedings are res judicata. In short, their claims have already been decided. 67. Given that the defendants seek Isaac Wunder Orders against the Bullens, it is appropriate in this case to consider and determine a number of other issues urged on the court by the defendants. Abuse of process/Frivolous and vexatious claim 69. The court can deal with the issue of frivolous and vexatious proceedings either by reference to RSC Ord 19 r 28 or through its inherent jurisdiction to prevent an abuse of the process of the court. As referred to above, the breath of the enquiry into the context of and the background to the proceedings when exercising its inherent jurisdiction was indicated by Costello J. in Barry v. Buckley [1981] IR 306. 70. Murray C.J. in In Re Vantive Holdings [2009] IESC 69 at para. 20 stated that “the courts have always had an inherent jurisdiction to stay or dismiss proceedings which abuse the due process of the administration of justice where to do otherwise would seriously undermine its effectiveness or integrity.” He went on to say that “[a]buse of process may take many forms according to the context or the nature of the proceedings…”. That case dealt with an application for an examinership but the principles are of general application. 71. In Vantive at para. 24, Murray C.J. said “…there still remains the inherent jurisdiction of the court to protect the integrity of the due process of the administration of justice and the finality, in principle of a judicial decision”. In Vantive, he was referring to the rule in Henderson v. Henderson [1843] 3 Hare 100 and to the approval thereof in the case of A.A. v. Medical Council [2003] 4 IR 302. The dicta of Hardiman J. in A.A. was repeated by Murray C.J. in which it was said that the rule in Henderson v. Henderson was an aspect of an abuse of process. Hardiman J. said as follows:
(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 improper purposes including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate right; (d.) where issues are 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 proceedings; (e.) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings; (f.) where the respondent persistently takes unsuccessful appeals from judicial decision.” 74. In my view, there is a clear pattern arising from the litigation in which Mr. and Mrs. Bullen have been involved. Even though they were defendants in the Circuit Court proceedings, those matters were compromised in a particular manner by them on legal advice. That settlement agreement was in full and final settlement of all issues arising between the parties to those proceedings relating to the land transactions but also included the full and final settlement of all claims against Mr. McCarthy and O’Donovan Murphy. 75. Mr. and Mrs. Bullen were dissatisfied with the settlement and they amended the previous High Court proceedings they had taken to include an attack upon that settlement. Their amended proceedings contained claims that are to all intents and purposes the same as the claims that are made in the current proceedings. They made claims for negligence, breach of contract, breach of duty arising out of the transactions between all of the parties to the settlement and added to that the solicitor who had represented them during the circuit court settlement. Thus, all those with any involvement in the land matters, including both their solicitors and their engineer were joined to the new proceedings. 76. It is clear that Mr. and Mrs. Bullen had control of those proceedings, that they had litigated the issues as claimed in their plenary summons and indeed in the statement of claim to the extent that they wanted to with the single exception that Hedigan J. dismissed the action as against the Fearons. They had chosen their manner of pleading the statement of claim, they had also chosen the extent of the evidence they would call on the hearing of the action. Those proceedings were finally dismissed. The result of those proceedings was that the settlement agreement of the 25th of October, 2005 stood. No appeal was taken by Mr. and Mrs. Bullen against the order of Hanna J. 77. Furthermore, the defendants were put to the expense of defending those proceedings and all of the claims that had been made therein. That is particularly onerous on Mr. and Mrs. O’Sullivan who are not funded by an insurance company. Each of the defendants were entitled to consider that at the conclusion of those proceedings when the plaintiffs’ claims were dismissed and the proceedings struck out, that the claims against them would finally be at an end. 78. Instead, we have a situation where Mr. and Mrs. Bullen are in effect seeking a third bite at the cherry. The decision not to proceed with their claims as against the O’Sullivans in the Circuit Court or to appeal the High Court decision in the 2004 proceedings, were matters for Mr. and Mrs. Bullen themselves and it is not the responsibility of the defendants. 79. Insofar as Mr. and Mrs. Bullen are now seeking to allege a fraud, it appears to me that those matters were clearly raised in the previous 2004 proceedings when they sought to amend their claim to include the claim to set aside those proceedings. In addition, they also stated that they had newly discovered evidence in an affidavit placed before the court in those proceedings. 80. Furthermore, it is clear that even at the time of the Circuit Court proceedings the concept of fraud was, on their own evidence, in their contemplation. Despite that they agreed to compromise that action. Fraud therefore has been contemplated by them throughout the course of the litigation history. In those circumstances, fraud was a matter that in the sense of Henderson v. Henderson should have been brought before the court by Mr. and Mrs. Bullen at that time, given the claims that they made in their notice of motion seeking to include the order to set aside. It was raised in submission by Mrs. Bullen personally at the application for a dismissal of the proceedings. Of course, if there had been evidence of fraud, it was the responsibility of the Bullens to put that before the Court at the appropriate time and in the appropriate manner. They did not do so. It is not consistent with the proper conduct of litigation and with the principle of finality of litigation that a party can hold back evidence and then seek to bring a further claim on foot of that evidence. 81. Insofar as Mr. and Mrs. Bullen claim that they have what can be characterised as newly discovered evidence, I have grave doubts in relation to same. In the first place, this appears to be evidence that was in the possession of, at the very least, their own solicitors at that time, who are not a defendant in these proceedings. In those circumstances, the facts are not truly newly discovered. Furthermore, even if the more correct view is that those documents were solely in the possession of their former solicitors, it was perfectly open to Mr. and Mrs. Bullen to seek discovery against them in the previous proceedings in which the former solicitors were a party. They did not do so. In those circumstances, these documents cannot truly be said to be newly discovered. 82. Indeed, these were documents that were allegedly in the possession of their own solicitor Mr. Gould (against whom no complaint was or is made in any proceeding). Documents in the possession of a party’s own solicitor are usually considered to be in that party’s own possession. Insofar as it might be otherwise, it would require exceptional circumstances to show that such documents are newly discovered. No such exceptional circumstances have been demonstrated here. 83. There is also a consideration that Mr. and Mrs. Bullen have never identified clearly the precise documentation that they say now shows fraud. They have not identified in a clear manner the nature of the fraud that is alleged. I say this in the context that it appears to be agreed between the parties (other than the Bullens) that the original map relating to the sale between the O’Sullivans to the Linters and the Linters to the Bullens was simply incorrect. It is a fact that these transactions were bedevilled by inaccuracies within the maps. It is also clearly the case that the Deed of Rectification and the subsequent settlement on the 25th of October, 2005, were attempts to rectify that. No documents have been clearly identified that would show that the map or maps were fraudulently drafted as distinct from being, perhaps negligently, or at least accidentally misleading. 84. I rely upon the findings of the Supreme Court in Mulrooney v. Shee [2012] IESC 20 at para 7.12 in relation to a claim to dismiss proceedings as an abuse of process, as follows:
86. I have referred above to the claim against the O’Sullivans for an abuse of their constitutional right of access to the court. In addition to what I have already held in relation to this claim, it is clearly an explicit plea that could and indeed should have been made in either of the earlier proceedings. 87. I am satisfied that the claims made in the current proceedings are virtually identical to the claims that were raised in the 2004 High Court proceedings. They are also matters that came within the full and final settlement made on the 25th of October, 2004. Insofar as it is possible to say that there is any new allegation, that was a matter which either had been at least mentioned during the proceedings before the High Court under the 2004 proceedings, or were matters that should have been brought before the High Court at that time. Even if Mr. and Mrs. Bullen complain that their issues were never finally addressed in those proceedings, the proper approach was to appeal the decision. Although they are lay litigants, it is clear that they were familiar with the concept of an appeal to the Supreme Court as they had appealed against the order dismissing the Fearons from the action. 88. Henderson v. Henderson abuse of process is a subspecies of the overall abuse of process jurisdiction. To allow the plaintiffs to pursue these proceedings would amount to an abuse of process of this court. These proceedings amount to a clear collateral attack on the settlement of the proceedings made in the Circuit Court and the final order made therein. More particularly, they are a collateral attack on the High Court Order of Hanna J. made in the context of pleadings that are virtually identical to the current set of pleadings. 89. There are clear public policy reasons why matters which have been substantially litigated or could and should have been substantially litigated in previous proceedings should not be permitted a rehearing. It is not in the interests of justice that Mr. and Mrs. Bullen should be permitted to carry on with these proceedings. Each of the defendants has been put to time and expense (the latter particularly so in the case of the O’Sullivans) in the defence of the various proceedings. The taking of further proceedings amounts to an unjust harassment of the defendants. The proper administration of justice requires that these claims be dismissed as an abuse of process under both the inherent jurisdiction of the court to stop proceedings as an abuse of process and under the rule in Henderson v. Henderson. Frivolous and Vexatious 91. However, the other indicia of frivolous and vexatious litigation are present. This is the third set of proceedings on this issue. They counterclaimed in the Circuit Court proceedings. Those proceedings were compromised by them when they entered into a settlement in the Circuit Court. They then continued their High Court proceedings which they had commenced prior to the compromise and then amended it to seek to disown their own settlement. On failing in those proceedings, rather than appeal, they launched these proceedings which are virtually identical to the earlier High Court proceedings. No reasonable person could expect to obtain relief in these proceedings. The issues have been rolled forward into other proceedings and they have sued two sets of legal representatives. 92. In the particular circumstances of the case, I find that the maintenance of these proceedings is frivolous and vexatious in the objective sense of that word. Statute of Limitations Isaac Wunder Order 95. In the context of my findings above that the process of this court is being abused and that these proceedings are frivolous and vexatious, I am of the view that this may be an appropriate case to make an Order restraining Mr. and Mrs. Bullen from instituting further proceedings against any or all of the named defendants without the leave of the High Court. Although I have not found that they are intentionally bringing these proceedings for the purpose of harassment and oppression, this is not a requisite finding (see Shannon v. Moran, Supreme Court, 9 December 2004). The objective reality is that the multiplicity of proceedings are vexatious and are oppressive on the defendants. 96. These orders are exceptional because of the importance of a person’s right of access to the courts. As stated by Denham J. in O’Reilly McCabe v. Minister for Justice, Equality and Law Reform [2009] IESC 52, the courts must also protect the rights of defendants, the principle of finality of litigation, the resources of the courts and fair procedures. 97. I am satisfied that the Bullens have persistently instigated vexatious civil proceedings against these defendants. Taking into account the entire history of the interaction between the parties, I am prepared to take the step of issuing an Isaac Wunder Order in this case. I am however of the view that the Order should be limited to the taking of proceedings touching and concerning any issue arising from the purchase of their property the subject matter of these proceedings, the boundaries of their property, the drawing or production of maps of their property, their representation by O’Donovan Murphy on any matter connected with the purchase of their property, the settlement proceedings in the Circuit Court, and any allegations of fraud arising out of any of the foregoing. Conclusion 99. Mr. and Mrs. Bullen have nursed their sense of grievance through various proceedings, even after settling with all other parties following independent legal advice. In the course of the motions, they produced what was said to be up to date maps from the Ordnance Survey Office which showed boundary lines going through the physical structures on their property. The details of the boundary lines were not for me to resolve and it was not appropriate to enter into any determination of the right or wrongs of those boundary lines. While it may be that those boundaries do not appear consistent with the map attached to the handwritten settlement terms in the Circuit Court - which puts the boundary of the Bullens’ property at the outside of any of the physical structures - that is a settlement that they themselves have tried repeatedly to repudiate. It can only be hoped that Mr. and Mrs. Bullen will be able to accept the terms of that agreement. In any event, that settlement now represents the position as regards the boundaries. If it has not already been done, perhaps now the boundaries can be delineated on the agreed map, which is then to be filed with the Registrar of Titles in accordance with the terms of the settlement. 100. The nature of any settlement is compromise. Often this means that neither party is entirely happy with the outcome but each party recognises it was the best decision to take in all the circumstances. In this case, the Bullens were clearly unhappy with their compromise. However, it has been determined by the High Court on a prior occasion that nonetheless they had made a valid agreement. For their sake and the sake of the defendants, it is to be hoped that there can be an acceptance that the legal dispute is over and that all parties will be free to concentrate on other aspects of their lives. |
