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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Highfield Distribution Ltd v Pat The Baker UnLtd Company [2020] IEHC 137 (21 February 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC137.html
Cite as: [2020] IEHC 137
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Page 1 ⇓
THE HIGH COURT
[2020] IEHC 137
[2018 No. 9806 P]
BETWEEN
HIGHFIELD DISTRIBUTION LIMITED
PLAINTIFF
AND
PAT THE BAKER UNLIMITED COMPANY
DEFENDANT
JUDGMENT of Mr. Justice Meenan delivered on the 21st day of February, 2020
Introduction
1. This is the defendant’s motion to dismiss the plaintiff’s action on the grounds that the
pleadings disclose no reasonable cause of action and/or that any cause of action disclosed
is frivolous or vexatious or, in the alternative, an order pursuant to the inherent
jurisdiction of the court striking out the proceedings on the basis that they are bound to
fail. It should be stated at the outset that on their face, the pleadings do disclose a cause
of action, but what this Court is concerned with is whether the cause of action is frivolous
and/or vexatious and/or bound to fail.
2. Central to the defendant’s application is its contention that it neither has, nor had, any
involvement or legal relationship with the plaintiff which is related to the plaintiff’s cause
of action.
Background
3. The defendant’s application is grounded on an affidavit of Mr. Declan Fitzgerald, Director
of the defendant company. In his affidavit, he states that on 11 November 2015 Irish
Pride Fine Foods Unlimited Company (the Company) was incorporated. The company is
engaged in the business of wholesale and retail bakery and confectionery. Subsequent to
its incorporation, the company purchased certain assets of Irish Pride Bakeries Unlimited
Company (“IPB”), which had previously traded as Irish Pride Bakeries. IPB went into
receivership on 16 June 2015, and the plaintiff purchased certain assets from the
receivers.
4. On the takeover of the assets by the plaintiff, each supplier was issued with a letter in
standard form, which stated, inter alia: -
“Please note that the company did not, as part of the acquisition of the business
(IPB), assent to an assignment or transfer of any rights and/or obligations of Irish
Pride or the receivers pursuant to any contract or agreement in place between you
and Irish Pride or the receivers. In addition, any monies/debts due to you up to
12th December, 2015 are not for the account of the company as these liabilities
have not transferred to the company.”
5. It should be noted, in this context, that the plaintiff had been providing certain services to
the previous owners of IPB. On the takeover by the company, transport services were put
out to tender and the plaintiff tendered for these transport services. The plaintiff was
unsuccessful in this regard.
Page 2 ⇓
6. Mr. Declan Fitzgerald states in his affidavit, the following: -
“41. I say that for the purposes of clarity, I say that the defendant company is the
owner of Irish Pride Fine Foods Unlimited Company and I hold the role of managing
director in both companies. While both companies are engaged in the business of
wholesale and retail bakers and confectioners they operate as two separate and
distinct businesses …”
The plaintiff does not dispute this.
Replying affidavit of the plaintiff
7. In his replying affidavit, Mr. Dennis O’Callaghan, Director of the plaintiff, states: -
“3. I say that on the 19th day of January, 2015, the plaintiff company entered into a
written contract with the defendants who at that material time were trading under
the style and title of Irish Pride Bakeries Unlimited.”
Mr. O’Callaghan exhibits a copy of this written contract.
8. This contract clearly states that it is between the plaintiff and “Irish Pride Bakeries”, the
defendant is neither named in the contract nor referred to. No evidence has been
produced to support the contention that the defendant is, or was, trading under the style
and title of Irish Pride Bakeries Unlimited. Further, there is no evidence produced by the
plaintiff to support the following statement in the affidavit of Mr. O’Callaghan: -
“I say and believe that the plaintiff company had supplied similar services on an
exclusive basis to the defendant company for more than 20 years on an ongoing
and continuous basis without interruption until the contract averred to above was
entered into …”
9. The only conclusion that can be drawn from what is deposed to in the affidavit of the
plaintiff is that the wrong company has been named as defendant. Such was clearly
stated in a letter, dated 13 February 2019, from the Solicitors instructed by the
defendant, which stated: -
“the current defendant named in the proceedings, namely Pat the Baker Unlimited
Company had no involvement whatsoever in the business and asset purchase
agreement which your client refers to and therefore, the proceedings are manifestly
unstateable. Whilst it is alleged that KPMG (the receivers of IPB) agreed to the
continuation of the agreement dated 19th January, 2015 with Pat the Baker
Unlimited Company that proposition is simply factually untrue and we refer you to
the correspondence from Arthur Cox dated 13th January, 2017 and furthermore,
correspondence dated 15th December, 2015 from Irish Pride Fine Foods to your
client which we attach for your convenience.”
Applicable legal principles
Page 3 ⇓
10. The legal principles, which a court should apply on an application such as this, were set
out recently, and comprehensively, in the judgment of Costello J. of the Court of Appeal
“The Legal Principles Applicable to Applications to Strike Out Proceedings Pursuant to
the Inherent Jurisdiction of the Court
50. Since Barry v. Buckley [1981] IR 306, it has been recognised that the court has an
inherent jurisdiction to strike out, or stay proceedings, if they are frivolous or
vexatious or are bound to fail. The jurisdiction exists to ensure that an abuse of the
process of the courts does not take place. All the authorities emphasise that it is an
exceptional jurisdiction to be exercised sparingly and only adopted when it is clear
that the proceedings are bound to fail and not where the plaintiff’s case is very
‘In my view, a defendant cannot succeed in an application to strike out
proceedings upon the basis that they disclose no reasonable cause of action
or are an abuse of the process if the Court, on the hearing of such
application, has to determine an issue for the purpose of deciding whether
the plaintiff will succeed in the action. It is not the function of the court to
determine whether the plaintiff will succeed in the action.
The function of the Court is to consider one question only, was it proper to
institute the proceedings? This question must be answered in the light of the
statement of claim and such incontrovertible evidence as the defendant may
adduce. If the claim could never have succeeded, then the proceedings
should be struck out. There is no room for considering what evidence should
be accepted or how it should be interpreted. To do the latter is to enter on to
some sort of hearing of the claim itself.’ (emphasis added)
51. As Murray J. pointed out in Jodifern, there is no such thing as a summary trial in
our rules of procedure (save as provided for in the Rules of the Superior Courts
which do not apply in this case). In Moylist Construction Ltd. v. Doheny
[2016] IESC 9, Clarke J. stated:-
‘Depriving the parties of a full trial in whatever form is appropriate to the
proceedings concerned is a departure from the norm, and one which should
only be engaged in when it is clear that there is no real risk of injustice in
adopting that course of action.’
At para. 5.9, he cautioned that the court must avoid slipping into the error of giving
the defendant ‘the type of summary disposal which our procedural law does not
provide for and which Murray J. cautioned against in Jodifern. Such issues, by
analogy with McGrath, cannot safely be dealt with in the confines of a motion on
affidavit.’
stated:-
Page 4 ⇓
‘2.5 It is also important to remember that a plaintiff does not necessarily have to
prove by evidence all of the facts asserted in resisting an application to
dismiss as being bound to fail … all that a plaintiff needs to do is to put
forward a credible basis for suggesting that it may, at trial, be possible to
establish the facts which are asserted and which are necessary for success in
the proceedings. Any assessment of the credibility of such an assertion has to
be made in the context of the undoubted fact, as pointed out by McCarthy J.
in Sun Fat Chan (at p. 428), that experience has shown that cases which go
to trial often take unusual turns on the facts which might not have been
anticipated in advance.’
‘6.9 … it is important to emphasise the significant limitations on the extent to
which a court can engage with the facts in an application to dismiss on the
grounds of being bound to fail. In cases where the legal rights and obligations
of the parties are governed by documents, then the court can examine those
documents to consider whether the plaintiff’s claim is bound to fail and may,
in that regard, have to ask the question as to whether there is any evidence
outside of that documentary record which could realistically have a bearing
on the rights and obligations concerned. Second, where the only evidence
which could be put forward concerning essential factual allegations made on
behalf of the plaintiff is documentary evidence, then the court can examine
that evidence to see if there is any basis on which it could provide support for
a plaintiff’s allegations. Third, and finally, a court may examine an allegation
to determine whether it is a mere assertion and, if so, to consider whether
any credible basis has been put forward for suggesting that evidence might
be available at trial to substantiate it. While there may be other unusual
circumstances in which it would be appropriate for the court to engage with
the facts, it does not seem to me that the proper determination of an
application to dismiss as being bound to fail can, ordinarily, go beyond the
limited form of factual analysis to which I have referred.’
54. The question for the Court on an application to strike out proceedings in reliance on
the court's inherent jurisdiction was described by Clarke J. in Lopes as:-
‘…can be established that there is no credible basis for suggesting that the
facts are as asserted and that, thus, the proceedings are bound to fail on the
merit…’”
Application of principles
11. The closest which the plaintiff comes to making a case against the defendant is the
statement in the affidavit of Mr. O’Callaghan, on the part of the plaintiff, stating that the
defendant “at the material time were trading under the style and title of Irish Pride
Bakeries Unlimited …”. No documentary evidence has been produced to support this
contention. It is merely an assertion without more. It is clear to me that the plaintiff has,
in fact, named the wrong defendant in these proceedings. Having done so, the
proceedings are bound to fail.
Page 5 ⇓
Conclusion
12. By reason of the foregoing, I will accede to the application of the defendant and dismiss
the proceedings.
Result: The defendant's application to dismiss the plainitff's action - granted: proceedings dismissed.