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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Harrington v SRF Ltd & Ors (Approved) [2025] IEHC 252 (14 May 2025)
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Cite as: [2025] IEHC 252

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AN ARD-CHÚIRT

THE HIGH COURT

 

 

[2025] IEHC 252

Record No. 2023 3335 P

 

BETWEEN:

JOHN HARRINGTON

Plaintiffs

AND

SRF LIMITED, RICHARD JAMES FITZPATRICK, AHYETT ROSAPA, JOHN J QUINN, CONOR QUINN, PAULINE BRADY, OLIVER BARRY, JOHN J QUINN & COMPANY SOLICITORS LLP

Defendants

JUDGMENT of Mr. Justice Liam Kennedy delivered on 14 May 2025

Introduction

1.                   This judgment primarily concerns the first, second and third defendants' ("the Applicants") motion to strike out the proceedings. The motion was issued on 5 July 2024 but was delayed due to the necessity for the Applicants to seek an order for substituted service on the plaintiff.

2.                   I am striking out the plaintiff's counter motion which seeks to strike out the defendants' motion. The counter motion should never have been issued. The plaintiff's objections to the Applicants' motion can and should be made in opposition to that motion. If the Applicants' motion succeeds, the counter motion must fail. However, if the original motion fails there is no need for the counter motion. The counter motion is redundant either way.

3.                   For completeness, I note two procedural points. Firstly, the Applicants originally also sought to dismiss the claim for want of prosecution in the absence of a statement of claim. There is a dispute as to when the Statement of Claim was delivered.  As it has now been delivered, that issue is moot. Secondly, the fourth to eighth defendants ("the Solicitor Defendants") represented the first defendant in the District Court proceedings which are referenced below. They have also applied to strike out the claim against them in these proceedings but, due to the plaintiff's pending procedural appeal, the plaintiff objected to their dismissal motion being heard along with the current motion. Accordingly, this judgement focuses on the Plaintiff's claim against the Applicants and I have largely disregarded the Solicitor Defendants' pending notice of motion and associated affidavits and correspondence.

4.                   The Applicants seek an Order pursuant to Order 19 rule 28(1)(i),(ii) & (iii) of the Rules of the Superior Courts ("RSC") and/or the Court's inherent jurisdiction dismissing the claim as frivolous and /or vexatious  and /or disclosing no reasonable cause of action and / or on the grounds that it is bound to fail. Similar reliefs were claimed on the basis that the claim constitutes an abuse of process as the proceedings are res judicata and breach the rule in Henderson v Henderson (1843) 3 Hare 100.

The Parties and the Dispute

5.                   The litigation arises from the supply of an umbilical machine and dribble bar system used for spreading slurry ("the System"). Issues include: (i) the identity of the contracting parties; (ii) whether the System was defective; (iii) monies claimed in respect of the System and related goods or services; (iv) the plaintiff's entitlement to ventilate such issues in these or other proceedings. The legal characterisation of the parties' respective roles is also disputed.

6.                   The first defendant issued District Court proceedings (SRF Limited v Autotech Harrington and Sons Co. Limited, District Court Area of Nenagh 2023/10004) a gainst Autotech Harrington & Son Co Limited in respect of monies allegedly outstanding on two invoices (in default of an appearance by the latter), and, as I have noted, was represented by the Solicitor Defendants. The District Court, having satisfied itself that Autotech Harrington's & Sons Co. Limited ("Autotech Ireland") had been duly served, gave judgment by default against it and in favour of the first defendant in the sum of €6,360.00, plus €560 costs. The defendants say that these proceedings are an abuse of process because the plaintiff has issued them (against all defendants) to obstruct and delay the enforcement of the judgment rather than taking avenues available to challenge or set aside that judgment if appropriate. 

7.                   The plaintiff is an individual, suing in a personal capacity. He lives in Galway and is associated with two companies, Autotech Ireland, which has a registered office at Tyone, Nenagh, Co Tipperary and Autotech Motors Ltd., which trades from 88 Main Street, Moira, Northern Ireland ("Autotech NI"). He is (or was when the key transaction was entered into) one of two director/50% shareholders of Autotech Ireland and he is also the sole director and shareholder of Autotech NI and the Secretary. He says that he personally contracted with the first and second defendants to buy the System in his own right, rather than for Autotech Ireland, as the Applicants contend. In other words, he maintains that he (and the second defendant) both contracted in a personal capacity not as company representatives.

8.                  The first defendant is a Northern Irish company based in Downpatrick, County Down. It sells and supplies umbilical systems under the trade name "SlurryQuip". It admits supplying the System but says that the contract was between it and Autotech Ireland (and that the plaintiff and the second defendants were representatives not contracting parties).

9.                  The second defendant is the first defendant's director. He dealt with the plaintiff when the latter visited its premises to enquire about buying the System and he provided an estimate to the plaintiff. He says that the contracting parties on the sale of the System were the first defendant as supplier and Autotech Ireland as the customer.

10.              The third defendant is the first defendant's part time employee. She deals with clerical and accounts administration. She prepared invoices exhibited in the District Court proceedings.

11.               The plaintiff says that the Solicitor Defendants acted negligently or with mala fides, breached duties of care to him and/or failed to undertake proper due diligence before prosecuting the District Court claim against Autotech Ireland.

Contractual Dealings

12.               The affidavits only refer to one meeting between the parties and its focus was probably pricing, rather than the identity of the contracting parties. There is no evidence before me referencing any explicit discussion of the latter issue. However, it is instructive to note the evolving understanding of the arrangements as appearing from contemporaneous documents. Undisputed evidence confirms that:

a.       The first defendant trades under the name SlurryQuip and produces the SlurryQuip range of products. On or about 15 December 2020, the plaintiff visited the first defendant's Downpatrick premises to enquire about buying the System and the second defendant gave him a price. The costing was handwritten by the third defendant on the first defendant's letterhead and there is a dispute as to whether the second defendant provided it on the first defendant's behalf (as he contends) or also on his own behalf (as the plaintiff contends).

b.       The sale of the System was agreed, and a £2,000 deposit was paid. The second defendant furnished a receipt on the first defendant's behalf, acknowledging payment of the deposit. The receipt was dated 15 December 2020, and was addressed to Autotech NI. The receipt was signed by the second defendant on the first defendant's letterhead. It provided for shipment to Autotech NI's address.

c.       The plaintiff's visit was followed by emails between the Plaintiff and the third defendant on 13 & 14 January 2021 arranging for payment of the balance of the price and the collection/delivery of the System.

d.       All exhibited emails from the third defendant were sent:

                                                              i.            Under a heading "Invoice 1630 from SRF Ltd"

                                                            ii.            from her work address "Ahyett Rosapa < office@slurryquip.com>"

                                                          iii.            with a signing block confirming that she was representing the first defendant

                                                           iv.            to the plaintiff at "arh130@msn.com" .

e.       All exhibited emails from the Plaintiff:

                                                              i.            also carried forward the "Invoice 1630 from SRF LTD" subject line

                                                            ii.            were sent from " ARH Ltd < arh130@msn.com >"

f.        The substance of the 13 January 2021 emails was as follows;

                                                              i.            At 1.42pm the third defendant sent the plaintiff an invoice showing the amount due with the following message

"Hi John

Please find attached invoice for 1 complete umbilical system

Best regards...'

The enclosed invoice evidently reflected the defendants' then understanding as to the contracting parties and also shows that parties envisaged that the System was destined for use by Autotech Ireland in Tipperary. This appears to have been what transpired in practice, as is shown by a subsequent servicing invoice. The details of the contracting party changed from Autotech NI to Autotech Ireland between 15 December 2020 (when the deposit was paid) and 13 January 2021 (when the balance of the purchase price was billed and paid). Presumably (although neither party confirmed the position one way or another in their affidavits) the changes reflected the plaintiff's instructions - the vendor would have no obvious reason to make such changes. In any event, it is significant that the plaintiff responded to the third defendant's email without taking exception to the description of the parties in the initial invoice; he required changes to the invoice (currency, delivery terms and price) but not to the contracting parties, suggesting that there was no issue in that regard.

                                                            ii.            the plaintiff responded at 3.05pm, asking the third defendant if the invoice was in euro, to which she replied in the affirmative, also confirming receipt of "£3,000 equivalent to €3,360 from Autotech Motors", a response suggesting that it was not remarkable that a contracting party would arrange for a payment to be made by a related company on its behalf.

                                                          iii.            At 3.22pm the plaintiff asked how much the System would cost in pounds rather than euros, and excluding the cost of delivery (to Autotech Ireland in Tipperary) if they collected it from the first defendant's Downpatrick premises. This response shows that the Plaintiff received and actively considered the invoice, raising points about pricing and delivery but not about the parties.

                                                           iv.            At 5.02pm the third defendant responded, confirmed the pricing in pounds and on the basis of collection from the first defendant's Downpatrick premises, avoiding the cost of delivery to Autotech Ireland in Tipperary).

g.       On 14 January 2021 the following emails were exchanged:

                                                              i.            the plaintiff asked at 10.28am whether the System would be "ready for picking up tomorrow"

                                                            ii.            at 10.35am he confirmed that he had sent £6,224 and the third defendant confirmed receipt with thanks at 10.51am.

                                                          iii.            Two emails from the plaintiff to the third defendant confirmed at 10.58am that he would send balance of £40,000 within the hour and at 11.32am that he had done so. At 12.56pm the third defendant confirmed receipt - "we received the last payment. It is now fully paid" to which the plaintiff responded "thanks you see you tomorrow"

h.        The invoices issued by the first defendant had the following features in common:

                                                              i.            all were issued by the third defendant on the first defendant's behalf and letterhead;

                                                            ii.            there was no suggestion on the face of the invoices that the plaintiff or the second defendant were parties.

                                                          iii.            the first defendant's bank details appeared on all invoices for payment purposes.

                                                           iv.            each invoice stated that goods remained in the first defendant's ownership until paid for.

                                                             v.            The invoices were addressed to Autotech Ireland, Monsea & Tyrone, Ballycommon, Nenagh, Co. Tipperary.

                                                           vi.            The invoices did not provide for VAT.

i.        The first, 13 January 2021, invoice, related to the original supply of the System itself. It set out details of the product, namely the System and its components and the price - €55,890 including the deposit of €3,360. Two aspects of the invoice should be noted:

                                                              i.            As appears from the email exchange, the Plaintiff paid for the System in advance so nothing is outstanding - this invoice was not part of the claim in the District Court proceedings.

                                                            ii.            As will be seen below, the Plaintiff maintains that the System was defective and his counterclaim is primarily directed to the products supplied on foot of this invoice.  

j.        The second, 1 April 2022, invoice was for a new lifter and the price was €6,360 - a net cost of €2,700 allowing for a "trade in"

k.       the third, 2 March 2023, invoice appears to be the charge back of the "trade in" figure  - €3,660 as the trade in had not been delivered.

l.        The first defendant's customer account statement dated 28 February 2023 identifies the customer as Autotech Ireland and shows €6,360 outstanding, corresponding to the second and third invoices.

m.     The first defendant's Santander bank statement confirmed credit for the payment:

                                                              i.            of the £2,000 deposit - the reference was "Autotech Motors Ltd", i.e. Autotech NI.

                                                            ii.            of the balance of the invoice by two bank transfer/credits on 14 January 2021 totalling £46,224. In each case, the Payer's reference was stated to be "REF umbilical system from Autotech MOT Limited", i.e Autotech NI.

n.       The District Court Debt Claim Notice was addressed to Autotech Ireland, Tyone, Nenagh, Co. Tipperary (which, perhaps contrary to the plaintiff's understanding, remained its registered office) and claimed €6,360 as due on the last two invoices. The seventh defendant furnished the normal endorsement and statutory declaration of service, confirming service on Autotech Ireland at its said registered office (which  appears to be why the plaintiff joined the seventh defendant to these proceedings).

o.       The plaintiff exhibited Barclays Bank payment confirmation sheets which confirmed: (a) the account number from which the transfers to the first defendant were made; (b) that the payments were to the first defendant alone; (c) the plaintiff was associated with the transfers in some capacity - his name appeared on each document (but there was no evidence to confirm whether this signified that he was the account holder, the person who authorised the transfer or both). The largely identical forms confirmed instructions to transfer £1,000 on 13 January 2021, and £6254.25 and £40,000 on 14 January.

The Plaintiff's Claim

13.               The plaintiff's fundamental complaint was that the System was defective, and its suppliers breached their contractual obligations. He also says that these contractual obligations were owed to him personally, not to Autotech Ireland, and by both the first and second defendants. The statement of claim alleges, without providing adequate particulars as required by Order 19 rule 5 RSC, that the Applicants acted with mala fides towards him.

The Applicants' Position

14.               The second defendant is a director of the first defendant and his grounding affidavit confirmed that the latter is

"involved in the manufacture and sale of farm equipment and trades under the name of 'Slurryquip'".

The grounding affidavit also confirmed that the first defendant sold a SlurryQuip System to Autotech Ireland for  €48,224.00 and notes that paras. 7 -21 and 24 -29 of the indorsement of claim all relate to the allegation that the System was not fit for purpose for various reasons and that as a consequence the plaintiff suffered loss and damage but that, even if  the first defendant had sold a defective product and even if such a claim could be permitted to proceed, the plaintiff would not be entitled to the reliefs claimed and  these proceedings had been issued to prevent the first defendant's enforcement of its judgment against Autotech Ireland so the proceedings are an abuse of process being pursued for a collateral purpose.

15.               He notes that the first defendant raised two further invoices (2996 and 2414) against Autotech Ireland after the Slurryquip machine was purchased. Invoice 2414 evidenced the first defendant's supply of Slurryquip 1200 m steering lifter sr/no. 11104 to Autotech Ireland for €6,360.00 less the trade in value of a STD 1200 Slurryquip lifter sr/no. 10828 for €3,660.00. As Autotech Ireland did not deliver the trade in, invoice 2996 was raised. This left €6,360.00 to the first Defendant from Autotech Ireland. The first defendant duly issued proceedings against it on 20 March 2023. The Court being satisfied with service, issued a default judgment on the 26 April 2023.

16.               The second defendant's second affidavit:

a.       denied that the Autotech Ireland proceedings were served at the wrong address, noting that they were served at its registered address in Nenagh, County Tipperary as per a B1 form (which seems to have been approved by the plaintiff as well as by the other director).

b.       notes that the electronic bank transfers of £40,000, £6,224.00 and £2,000.00 were received by the first defendant from Autotech NI not from the plaintiff.

c.       notes the plaintiff's indication at para. 53 of his replying affidavit that the Irish company intended to challenge the District Court order on the grounds that it had no contract between with the first defendant and that any contract was with the plaintiff but observes that that would be the appropriate course for the Irish company to adopt and it was not permissible to make such a case by way of these proceedings.

17.               The Applicants accepts that the first defendant sold the system but says that it did so to Autotech Ireland, and that the second defendant had no contract with the plaintiff or his companies in his personal capacity. They submitted that the plaintiff's attempt to interpose himself and the second defendant into the contract to buy the System is an attempt to avoid the consequence of the District Court ruling and thus an abuse of process. They further submitted that:

a.        the contemporaneous documents showed that the first defendant and Autotech Ireland were the contracting parties. There was no suggestion to the contrary until enforcement of the District Court judgement was threatened.

b.       The first three reliefs sought constitute a collateral attack on the District Court judgment. Throughout the pleadings the plaintiff agitates issues which, if they had any substance, should have been advanced by Autotech Ireland in the District Court proceedings. The proceedings breach the rule in Henderson v Henderson.

c.       The claim against the third defendant is particularly contrived. A part time clerical worker employed by the first defendant, she was acting in the course of her employment at all material times. There is no plausible basis for contending that she could have any personal liability to the plaintiff.

d.       provided there is a 'sufficient degree of identity' between them, parties to two proceedings need not be identical in order for the later proceedings to be an abuse of process or offend against the rule in Henderson v Henderson because it seeks to relitigate the earlier proceedings. There is both a sufficient identification and privity of interest between the plaintiff and Autotech Ireland and the claim is an abuse of process.

e.       While fraud can provide a basis or special circumstance to re-open an earlier judgment notwithstanding Henderson v Henderson, the plaintiff's unparticularised and unfounded allegations of fraud against the third Defendant in the preparation by her of SRF invoices 2414 and 2996 is itself an abuse of process and that such unfounded allegations of fraud amount to an abuse of process of the court permitting proceedings to be struck out. Ó Siodhacháin & Anor v O'Mahony & Anor (unreported, Supreme Court, Keane CJ, 7 December 2001).

f.        the plaintiff is a serial litigant as appears from the Court of Appeal judgment in an unrelated case, Harrington v Greenway Holdings Ltd & Ors [2022] IECA 55]. (I have not considered it necessary to have regard to that last submission).

The Plaintiff's Position

18.               The plaintiff's replying affidavits emphasised, inter alia:

a.        that he personally ­­­­­­­­­­paid the £2,000 deposit (but he later says it was paid from Autotech NI's bank account) and he personally transferred three payments to the first and second defendants on 13 and 14 January, 2021 totaling £47,224,

"from my Sterling account namely Barclays Bank of UK in the name of John Micheal Harrington".

(In fact, the payments were to the first defendant's account, rather than to the first and second defendants).

b.       claims that the first and second Defendants and their solicitors acted in male fides in the proceedings against Autotech Ireland as there was no contract between the said company and the Applicants and

"the invoices produced were made up by the said Defendants and put before that Court in male fides, notwithstanding the fact that they were outside of jurisdiction, had no contract, service was not good nor was I before the Court on behalf of the company nor a Solicitor of same. I tried to bring the matter before Justice Liz McGrath at the District Court, Nenagh on numerous occasions but unfortunately she was unwell and later passed away. We have to go back before the Court to set that order aside and have it reheard, notwithstanding the fact they have now discovered they had no cause of action against that company. Therefore, for the reasons set out above the reliefs set out in 1, 2 and 3 of my endorsement of claim are warranted and are unstoppable".

c.       Says that the Defendants secured the District Court Order under false pretenses as they never dealt with Autotech Ireland, had no contract with it, and there was no jurisdiction, that they deliberately misled the District Court Judge which amounts to abuse of process, the reliefs sought were justified to stop the Defendants' attempts to bankrupt Autotech Ireland under false and misleading circumstances  and that the District Court Order was being challenged and the Defendants would be served in due course.

d.       Said that the two invoices were fraudulently manufactured by the third Defendant after the Plaintiff had settled the original invoice in full (as she had confirmed by email.

e.       says that there was no valid service on Autotech Ireland, and same would be challenged in the District Court and all the "manufactured invoices" are disputed.

f.        says that the District Court proceedings are unlawful, the Order unsafe and a nullity as there was no jurisdiction, no contract, the company was not served, was unrepresented the invoices are disputed and no money or goods were exchanged between the Applicants and Autotech Ireland.

g.       Says that District Court order "will be addressed and challenged separately", on the basis of the forgoing points and that

"the Plaintiff will seek to District Court to set aside the said the judgement and thereafter to Circuit Court, and J.R. in the High Court if necessary, and the Defendants will be served in due course, and the Defendants and this Court is now aware of same, and any attempt to carry out a liquidation or bankruptcy on a company where no contract existed is fraudulent, the District Court was misled and the relief sought is justified.

h.       Says that the third defendant caused loss and damage to the Plaintiff by falsifying invoices two years after confirming the receipt of payment on the original invoice, and the Plaintiff, as a separate legal entity to Autotech Ireland, is entitled to damages and losses pursuant to the High Court's inherent jurisdiction.

i.        Says that no emails were sent from the Plaintiff to the third Defendant on behalf of Autotech Ireland, all emails were from the Plaintiff who had a contract with the first and second defendants.

19.               The plaintiff's written submissions, inter alia:

a.       took exception to the application to strike out the proceedings before a defence had been filed.

b.       maintained that the address in the 13 January 2021 invoice differed to that shown in the District Court proceedings.

c.       emphasised that the defendant's 13 January 2021 email acknowledged receipt of €3,360 from Autotech NI (implying that it, not Autotech Ireland, was the contracting party.

d.       claimed (although this was not on affidavit) that the reference to ARH Ltd in his email address was essentially a hangover from when he set up the email years ago and in any event, it did not refer to Autotech Ireland so it did not support the way the District Court proceedings were framed.

e.       argued that there no such company as Slurryquip, the name appearing on the original quote for the system, supporting his contention that the contract was with the first and visecond defendants. The second defendant's authorship of that document meant that he was a contracting party.

f.        confirmed that he had completed the bank transfer instruction online and did not dispute the fact that the identifying reference received by the first defendant - Autotech MOT - came from him.

g.       stated that the £2,000 deposit was paid through Autotech Motors Ltd which was not related to Autotech Ireland (a dubious assertion in view of the plaintiff's ownership and management roles in both companies as noted above) and the balance was paid through the Barclays Bank, noting that his name appeared in the top right-hand corner of the electronic transfer documents he had exhibited. 

h.       argued that he had to apply to the High Court for leave to serve the defendants outside the jurisdiction, so the first defendant should have had to do the same. (This submission reflects a misunderstanding of the legal requirements. The defendant to the District Company was an Irish company and service was effected within the jurisdiction so no such application was necessary.)

i.        objected to the Applicants bringing the application without putting in a defence (but such an application is provided for in the RSC in appropriate circumstances, so the Applicants were entitled to invoke rule 28).

The Law

20.               As the learned authors of Delany and McGrath on Civil Procedure, (5th ed, 2023) ("Delany") observe at para. [16-01], citing Tracey v Minister for Justice, Equality and Law Reform [2018] IEHC 45 at para. 6, the Courts must

" balance the constitutional rights of plaintiffs to institute and prosecute proceedings with the interests of defendants who should not be forced to defend proceedings that are vexatious or bound to fail. So, as McKechnie J stated in Ewing v Ireland (2013) IESC 4423, there is "no duty to allow the continuance of unstateable cases to full hearing". The court also have a duty to uphold the integrity of the judicial system by declining to adjudicate on matters that constitute an abuse of process of the courts. O'Donnell J pointed out in Nowak v Data Protection Commissioner [2016] IESC 18 at 14 that "when used appropriately, the power to dismiss proceedings in limine saves court time, avoids delay, and, just as importantly, prevents the court process and the inevitable delays involved therein from being used merely to bring pressure on the other party, and thus become a bargaining counter in negotiations."

21.               McGovern J in the the High Court considered the need to balance the litigant's right of access to the courts with the responsibility to prevent the abuse of that right in Vico Ltd & Ors v Bank of Ireland & Ors [2015] IEHC 525 ("Vico Ltd"). He noted that the right of access to the courts - whether under the constitution or the European Convention on Human Rights - is not an unlimited right and is subject to constraints based on public policy and legal principles and that

"the right of access to the courts carries with it the responsibility to act to accept the decisions of the courts and not to use a court process to launch collateral attacks on or undermine earlier decisions of the courts on similar issues between the same party parties will parties with a privity of interest."

22.               The courts have repeatedly emphasised that the jurisdiction to strike out proceedings must be sparingly and cautiously exercised. It should be restricted to clear cases. See for example, Aer Rianta v Ryanair [2004] IESC 23, [2004] 1 IR 506, Barry v Buckley [1981] IR 306 and Sun Fat Chan v Osseous Ltd [1992] 1 IR 425. As Clarke J observed in Moylist Construction Ltd v Doheny [2016] IESC 9 "the default position in respect of any proceedings is that they should go to trial" a plaintiff should only be deprived of a full trial if there is no real risk of injustice.

23.               This case appears analogous to Flanagan v Kelly [1999] IEHC 116 where O'Sullivan J struck out a claim brought by an individual in respect of alleged losses which were his company's losses not his own. The Court concluded that the claim must fail on that basis and the same appears true here.

24.               The Courts have confirmed that it would be wrong to strike out proceedings on the basis of an infirmity which could be cured by an amendment which was open to the plaintiff on the facts. However, there is no suggestion that in the circumstances of this case there is scope for an amendment which could cure the infirmities identified.

25.               I am guided by the approach of Barron J in Jodifern v Fitzgerald [2000] 3 IR 321 who observed that it is not a matter of deciding who will succeed in the action:

"The function of the court is to consider one question only, was it proper to institute the proceedings? The 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 onto some sort of hearing of the claim itself".

26.               In Farley v Ireland (unreported, Supreme Court, 1 May 1997)  Barron J added that:

"if [a plaintiff] has no reasonable chance of succeeding then the law says it is frivolous to bring the case. Similarly, it is a hardship to the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious."

27.               As Delany observes [16 - 48]  it is sufficient if

" the court is satisfied that it has no reasonable prospect of success and it would be appropriate to strike it out."

28.               In Dunnes Stores v An Bord Pleanala [2015] IEHC 716 ("Dunnes"), Barrett J reviewed the authorities and, at para. 65-80, summarised the principles applicable to determining there was an abuse of process:

"...[2] The term 'abuse of process' connotes that the process is employed for a purpose other than the attainment of the claim in the action. If proceedings are merely a 'stalking horse' to coerce the defendant in some way entirely outside the ambit of the legal claim brought, they involve an 'abuse of process'...

[3] Where 'abuse of process' is alleged, the question for determination is whether the party who has brought the impugned proceedings is using the legal process in a proper fashion or is abusing the process by seeking to use it to achieve an improper objective...,

[4] If there is a reasonable relationship between (a) a plaintiff's intended result, and (b) the scope of the remedy available in the proceedings brought, there is no 'abuse of process'....

[5] If there are mixed (proper and collateral) objectives, discerning whether there is abuse involves answering the question 'If it were not for the collateral purpose (so if there was only the legitimate purpose), would the plaintiff have commenced the proceedings?' If 'yes', no abuse seems to present. If 'no', abuse seems to present, assuming the collateral purpose is proven...

[6] The test at [5] casts on 'the other party' an-onus of proving what the plaintiff would not have done, if the other party proves the plaintiff formed the intention of obtaining a collateral advantage...

[8] That legitimate use of a lawful remedy will or may result in a collateral benefit to the applicant does not affect the applicant's right to seek and be granted such remedy. This applies even to cases where the principal motivation for the application is a collateral benefit for the applicant. In most such cases it is the unlawful activity sought to be restrained which has resulted or will result in commercial advantage; and the applicant seeking the remedy has a bona fide grievance and is seeking to right a perceived injustice or wrong....

[9] Court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage, and not for the purpose for which such proceedings are properly designed and exist. A party so using or threatening proceedings is liable to be held guilty of abusing the process of the court and therefore be disqualified from invoking the powers of the court by proceedings he has abused....

[10] The High Court has an inherent jurisdiction to strike out proceedings as an 'abuse of process'; this jurisdiction must be exercised with caution....

 [11] The court, before striking out for 'abuse of process', must: (A) be satisfied by way of evidence that the plaintiff, in commencing these proceedings, (i) has an ulterior motive, (ii) seeks a collateral advantage beyond what the law offers, and (iii) has instituted the proceedings for a purpose which the law does not recognise as a legitimate use of the remedy sought; and (B) ought always to recall the cautionary note of Keane J. in [McCauley v Dermott [1997] 2 ILRM 486] (as referred to at VI)...

[12] If an action is not brought bona fide for the purpose of obtaining the relief but for some ulterior or collateral purpose, it may be struck out as an abuse of court process. The time of the court should not be wasted on such matters. Other litigants should not have to wait till they are disposed of. But for the court to strike out on this basis, it must be clear that this is the case...

 [13] In considering 'abuse of process' applications, the courts may (perhaps should) take into account the interests of bona fide litigants who must often compete for court time. It is desirable and consistent with proper public policy that the interests of such litigants have precedence over the rights of those who wish to litigate points of law which (a) are wholly or largely technical in nature, (b) flimsy in substance, and (c) for purposes unconnected with public benefit and wholly concerned with private gain... "

29.               There is no basis for the plaintiff's contention that the application is premature in advance of the delivery of a defence. The High Court decision in RC v KE [2018] IEHC 548 confirms such an application may be brought before the delivery of a defence. Noonan J rejected the submission that it was premature to consider the application before the defence was delivered. Finlay Geoghegan J reached the same conclusion in Vico Ltd., endorsing the observation of Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 ("Johnson") at p 34 that

"application to strike out abuse of process is not a defence; it is an objection to an action being brought at all."

30.               Noonan J added that:

"The nature of the action now sought to be brought by the plaintiff herein was evident from the statement of claim filed and the application could be to have determined having regard to the statement of claim".

31.               In Riordan v Ireland (No 5)[2001] 4 IR 46 ("Riordan"),  Ó'Caoimh J approved the decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 DLR (4th) 685 (which listed factors which might indicate the proceedings were frivolous or vexatious, a summary endorsed by many other Irish courts, including McMenamin J in Ewing v Ireland [2013] IESC 44. The factors (which have been cited with approval in numerous other Irish judgments) include;

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 gain relief;

c.       where the action is brought for an improper purpose, including harassment and oppression of the of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d.       where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against lawyers who have acted for  or against the litigants in earlier proceeding;

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 decisions".

32.               In Henderson v Henderson, Wigan VC stated

"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the court requires the parties to the litigation to bring forward their whole case, and will not (except under special circumstances) allow the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. The plea res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgement, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might put forward at the time.

33.               As appears from the authorities cited by Delany at paras. [16 - 129] and [16 - 130], notably Quinn v IBRC [2016] IECA 21 and Vico Ltd., parties to later proceedings need not be identical to those in earlier proceedings in order to trigger the rule in Henderson v Henderson. The rule will apply if there is a sufficient degree of identity between the parties. For example in Vico Ltd. McGovern J concluded that the plaintiff company was not entitled to issue proceedings since it could and should have applied to join the earlier proceedings to make the case which it later sought to advance in separate proceedings The Court's observation that such a joinder application could have been brought  "but those in control of the company chose not to do so"  seems equally applicable here. On appeal Finlay Geoghegan J endorsed the High Court's approach, commenting that there was a "sufficient degree of identity" between the plaintiffs in the original proceedings and the corporate plaintiff in the subsequent matter before the court. She cited with approval the observation of McGarry VC in Gleeson v J Wipple & Co Ltd [1977] 1 WLR 510 that it was not necessary that

"one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party".

34.               Likewise, in Re Vantive Holdings [2009] IESC 69, [2010] 2 IR 118 the Supreme Court concluded that the bringing of a second petition on foot of evidence withheld in earlier proceedings and was an abuse of process and a prima facie bar to the second proceeding. Denham J agreed that even where the rule in Henderson v Henderson did not apply the court has an inherent jurisdiction to prevent the misuse of its procedures where litigation would be unfair to a party or would bring the administration of justice into dispute into disrepute. The repeat petition was an abuse of process and it would also be an abuse to allow a party to take deliberate strategic decision to withhold evidence on the first petition and then to advance fundamentally the same petition with previously withheld evidence.

35.               The application has been brought pursuant to Order 19, rule 28 RSC. There was no real controversy as to the meaning or effect of the current provision.  Under rule 8(3) the Court may have regard not only to the pleadings but also to evidence in any affidavit filed in support of, or in opposition to, the application. As Simons J noted in O'Malley v National Standards Authority of Ireland [2024] IEHC 500 the current provision combines the previous common law inherent jurisdiction jurisprudence with the original rule 28. Simons J observed at para. 10 that:

"It seems to follow, by analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule."

36.               In Barry v Buckley [1981] IR 306 Costello J held that :-.

"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 which are manifestly causing irrevocable damage to a Defendant."

37.               The Defendants relied on  the Supreme Court judgment in Fay v Tegral Pipes Ltd [2005] IESC 34 in which McCracken J concluded that the Court was entitled to have regard to clear facts and affidavit evidence when deciding to dismiss a claim:-

"... the Court had before it affidavit evidence setting out the background facts and the issues in relation to each of the claims made. ... to a large extent, the facts themselves are not in issue; what is in issue is the interpretation of those facts and the question of whether the facts can give rise to any cause of action. Indeed, if any facts are in issue, that is not a matter which can be determined on a motion of this nature, and the Court must assume that the facts as pleaded or deposed to on behalf of the Plaintiff are correct. However, the Court is entitled to examine the inferences which the Plaintiff seeks to draw from the facts in ascertaining whether those facts can give rise to any reasonable cause of action."

38.               In Lopes v Minister for Justice Equality and Law Reform [2014] IESC 21 Clarke J considered the distinction between the earlier iteration of Rule 28 and the inherent jurisdiction, finding that proceedings can be dismissed if the asserted facts are not credible and the claim is bound to fail:-

" If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it 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 merits, then the inherent jurisdiction of the Court to prevent abuse can be invoked."

39.               In Rippington v Ireland [2019] IEHC 353 Simons J reviewed the authorities, noting at para. 60 McDonald J's summary in Darragh v Darragh [2018] IEHC 427 as follows:-

"the inherent jurisdiction of the court can be invoked where it is possible to establish the facts at an interlocutory stage with clarity, and where it is possible to show (again with clarity) that those facts do not support the claim made such that the court can conclude that the proceedings are bound to fail on the merits".

40.               The Defendants submit - and I agree that Vico Ltd. confirms that parties to a first set of proceedings need not be identical to those in later proceedings for the later proceedings to be deemed an abuse of process or offending the rule in Henderson v Henderson provided there is a 'sufficient degree of identity' between them. The High Court held at para. 23:-

"The right of access to the courts carries with it the responsibility to accept the decisions of the courts and not to use the court process to launch a collateral attack on or undermine earlier decisions of the courts on similar issues between the same parties or parties with a privity of interest. While the rule in Salomon v. Salomon still applies in this jurisdiction, it does not follow that Vico can maintain these proceedings merely because it did not take part in the earlier proceedings when it could have done so. Vico Ltd could, and should, have been joined as a co-plaintiff in the Gorse Hill proceedings or could have maintained parallel proceedings but those in control of the company chose not to do so." [emphasis added]

41.               The Court of Appeal upheld this conclusion [2016] IECA 273. At para. 29 of her judgment, Finlay Geoghegan J referenced  Johnson.:

"... Lord Bingham addresses the position where one or more of the parties to the second set of proceedings was not a party to the first proceedings. This is relevant given the addition of Vico (which was not a party to the Gorse Hill proceedings) as a plaintiff in the current proceedings. Lord Bingham at p. 32 determined that the courts below in those proceedings had correctly rejected a submission that the rule in Henderson v. Henderson did not apply because the personal plaintiff, Mr. Johnson, had not been a party to the first action, but rather a company had been. He then identified as the correct approach that formulated by Sir. Robert Megarry V.C. in Gleeson v. J. Wippell & Co. Ltd. [1977] 1 WLR 510, where he said:- 

'.... I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest"'."

Discussion

42.               Although the question of the contracting parties is central to the application, the affidavits do not reference any express discussions as to the choice of contracting parties when the contract was entered into - either during the plaintiff's visit to the first defendant's premises or thereafter. Accordingly, it is necessary to consider contemporaneous documentation to objectively determine who  the contracting parties were :

a.       the quotation was on the stationery of Slurryquip, the first defendant's trading name and the key meeting took place at its premises. The only reasonable inference is that the document was tendered by the second defendant, on the first defendant's behalf.

b.       The deposit was paid to the first defendant on 15 December 2020 and the receipt on the first defendant's letterhead was addressed to Autotech NI and provided for shipment to Autotech NI's address. Accordingly, it appears from the receipt that, as at 15 December 2020, the parties envisaged that the first defendant would bill and ship the System to Autotech NI. Accordingly, in isolation, that receipt might suggest that the contract was between those two parties which would not be consistent with the first defendant's District Court claim against Autotech Ireland, nor with the plaintiff's claim to be the contracting party. However, a different picture of the contractual position emerges from the subsequent documents.

c.       the following facts about the email correspondence are particularly significant:

                                                              i.            All of the emails to and from the plaintiff on 13-14 January 2021 were sent under a heading "Invoice 1630 from SRF Ltd", consistent with the first defendant being the contracting party on the supplier side.

                                                            ii.            The first defendant's enclosed invoice was addressed to Autotech Ireland, suggesting a mutual understanding that they were the contracting parties.

                                                          iii.            The third defendant's emails were all sent from her work email account with a signing block confirming that she was signing on the first defendant's behalf, reflecting that she was acting as the first defendant's employee. 

                                                           iv.            The plaintiff's emails to the third defendant were sent from " ARH Ltd < arh130@msn.com >". Although "ARH Ltd" does not correspond with Autotech Ireland's name, nor does correspond with his own name or appear to be a personal email address or to be an address which the plaintiff could have been expected to use in a personal capacity. The obvious inference from the plaintiff's email address was that it was sent by or for Autotech Ireland, possibly by a related company. It would be an odd address for the plaintiff to use for personal correspondence. Indeed, his doing so could raise legal issues since Section 27 of the Companies Act 2014 provides that:

"(1) Neither a body that is not a company nor an individual shall carry on any trade, profession or business under a name which includes, as its last part, the word "limited" or the words "company limited by shares" or any abbreviations of any of the foregoing words.

(2) If a body or individual contravenes subsection (1), the body or individual and, in the case of a body, any officer of it who is in default, shall be guilty of a category 3 offence."

 

                                                             v.            the plaintiff's queries show that he received and examined the 13 January 2021 invoice because he queried currency and delivery details, but he did not express any concern about the invoicing details in his chain of emails on 13 - 14 January 2021 or, it appears any other contemporaneous documents. Both sides accepted Autotech Ireland as the designated purchaser.

d.       The following features of the first defendant's invoices are significant in terms of confirming the contracting parties' identity:

                                                              i.            all were issued on the first defendant's letterhead;

                                                            ii.            there was no suggestion on the face of the invoices that there were any parties other than the first defendant and the addressee, Autotech Ireland.

                                                          iii.            the first defendant's bank details appeared on all invoices for payment purposes.

                                                           iv.            the invoices stipulated that the goods "remained in the (first defendant's) ownership" until paid for.

                                                             v.            The invoices did not provide for VAT, implying that the purchaser was not based in Northern Ireland. The plaintiff would have appreciated that VAT would have been payable if Autotech NI was the purchaser.

e.       The First Defendant's 28 February 2023 customer account statement likewise identifies the customer as Autotech Ireland and shows €6,360 outstanding, corresponding to the second and third invoices.

f.        The first defendant's Santander bank statements and the payer references on three bank transfers suggest that the deposit and the balance of the price may have been paid by or on behalf of "Autotech Motors Ltd" or "Autotech MOT Limited", i.e. Autotech NI.

g.       The Barclays payment confirmation sheets exhibited by the plaintiff confirm the account number from which three transfers to the first defendant were made and that the payments were to the first defendant (rather than the first and second defendant). They also show that the plaintiff was associated with the transfers in some capacity but not whether this signified that he was the account holder, the person who authorised the transfer or both.

43.               The contemporaneous evidence is inconsistent with the plaintiff's assertion that he entered the contract in his individual capacity with the first defendant company and with the second defendant:

a.       The first defendant's 13 January 2021 invoice was addressed to Autotech Ireland.

b.       The first defendant's Santander Account shows payment for the System on 14 January 2021 in two tranches. Such payments were stated (presumably as a result of the way the plaintiff effected the transfer) to have been made by "AUTOTECH MOT LTD", not by the plaintiff individually;

c.       The deposit paid by cheque on 24 December 2020 was also paid by Autotech NI, not by the plaintiff personally, so it does not support his case;

d.       Later invoices were issued to the plaintiff on 1 April 2022 and 2 March 2023 and the statement of account issued on 28 February 2023 were all issued by the first defendant with its logo and in its name and all were addressed to Autotech Ireland.

e.       The contemporaneous emails between the third defendant in the course of her employment with the first defendant and the plaintiff as a representative of the Irish company show that she consistently engaged with the plaintiff as an employee of the first defendant company from an email address owned and maintained by it;

f.        The contemporaneous emails also show that the plaintiff never emailed the first defendant from a private email address in his personal name;

g.       The emails show that the plaintiff did not object when invoices were sent from the first defendant to him which were addressed to the first defendant; at no stage did he assert that he was buying the System in his personal capacity and that he, rather than Autotech Ireland, was the contracting party.

h.       The contemporaneous emails show that the plaintiff never asserted that he or his companies were contracting with the second defendant in the latter's personal capacity.

i.        The plaintiff asserts that he paid £47,242 from his sterling account with Barclays Bank UK to the first and second name defendant but the documentary evidence did not confirm the identity of the account holder.  His first replying affidavit promised to refer the Court to the bank transfer "when produced" but he never did produce it, despite being called upon to do so. Furthermore, the plaintiff's position on these issues was fluid. In submissions he claimed that he and his Northern Irish company were the account holders, which was not consistent with his affidavits. His claim to have paid the purchase price lacks credibility because:

                                                              i.            the Barclay accountholder details were not exhibited, nor any other documents to show that he was the account holder,

                                                            ii.            nor was information provided from his and his companies books, records, accounts and tax records to confirm how the transactions were accounted for at the time.

                                                          iii.            the transfer was to the first defendant's bank account contradicting his claim to have paid both the first and second defendants;

                                                           iv.            The plaintiff himself volunteered in submissions that the account was used because the payment was required to be in sterling and Autotech Ireland had no sterling account. It would not affect the position in terms of the contracting parties if as a matter of convenience, the contracting party arranged for a sister company or for their principal to pay the first defendant on their behalf.

44.               Viewing the transaction objectively, one assumes that from the vendor's perspective, the purchaser's identity is a matter of indifference providing the vendor is paid the purchase price (plus VAT if applicable). The Applicants would have had no conceivable reason in January 2021 to identify Autotech Ireland as the purchaser unless those details were furnished by the plaintiff or his companies. Indeed, I have seen no evidence that the defendants were even aware of the existence or identity of Autotech Ireland prior to the transaction. Accordingly, the only reasonable explanation  for the inclusion of the details of Autotech Ireland in the first defendant's 13 January 2021 invoice (and  the three subsequent invoices) and for the Plaintiff's failure to query those details is that the invoices faithfully reflected the instructions given by the plaintiff  at some point between Autotech NI's payment of the deposit on 24 December 2020 and the 13 January 2021 emails and invoice.

45.               Perhaps the most decisive fact is that, if the plaintiff had intended that he or Autotech NI should be the purchaser then he would have advised the third defendant accordingly when he received the first invoice on 13 January 2021. Having failed to do so then, he has no basis to argue four years later that the invoice did not correctly identify the parties.

46.               Accordingly, viewed objectively, as is appropriate when interpreting contracts, see for example the judgment of Laffoy J in UPM v MWG (unreported, High Court, 11 June 1999), the contemporaneous documents show that Autotech Ireland was the purchaser. There was no plausible motive for the vendor to mislead in that regard. Indeed, when it became necessary to issue proceedings, it would have been more convenient for the first defendant if the debtor had been Autotech NI as it could have sued in Northern Ireland. The only plausible explanation is that details of Autotech Ireland were provided by the plaintiff with the intention that it should be identified as the buyer of the System.

47.               The objective evidence also speaks volumes when the purchaser's position is considered. Whether or not he traded in his own right he played a controlling role in both companies. He appears to have significant business activities in both Ireland and Northern Ireland. He is a company director in both jurisdictions. He is clearly well acquainted with business, commercial and legal matters as demonstrated by the speed with which he was able to raise and transfer the funds required to buy the system. He is familiar with legal concepts and obligations as was demonstrated by his familiarity in oral submissions with the principles of Henderson v. Henderson and Isaac Wunder orders. Accordingly, as an apparently sophisticated and experienced company director and a businessman, he would appreciate his statutory obligation as a company director to ensure that his companies maintained proper books and records and accounts that properly recorded their affairs, including their accounting and tax affairs (and that correctly ascribed income and expenditure to the relevant company, distinguishing as between each company's affairs and his own.  He would also be well aware of his and his companies' statutory obligations with regard to income tax and VAT in both jurisdictions and of the need, both for his own personal tax returns and for the company's accounts and tax returns, to ensure that expenditure was properly vouched and ascribed to the correct entity. In those circumstances I find it incredible that he maintains that he personally bought the system. If that had been the position, then his immediate response to the first 13 January email from the third defendant would have been to direct that the invoice be addressed to him personally. His failure to do so signalled his agreement that Autotech Ireland was the buyer. He has offered no plausible explanation for his silence at the time.

48.               The Court is entitled to assume that as an experienced business person, the plaintiff would be concerned to ensure that he personally and his companies complied in both jurisdictions with all applicable income tax and VAT obligations as well their corporate accounting and record-keeping obligations. He would understand that whoever bought the system would need vouching documentation for tax and accounting purposes. They would also have been required to pay VAT if purchasing within their own jurisdiction in which case they would have required a VAT invoice showing that they paid and discharged the applicable VAT. The failure to keep appropriately detailed documentation in 2021 is inconsistent with either the plaintiff or Autotech NI being the contracting party.

Who sold the System in January 2021?

49.               The plaintiff's suggestion that, when he visited the first defendant's premises on 15 December 2020 and negotiated the purchase of its products with its representative, the second defendant,  the latter was negotiating on his own personal behalf and on behalf of the first defendant is a bizarre retrospective characterisation rather than a reflection of any express representation. It is an unusual interpretation of such a situation which would be contrary to normal commercial practice and contrary to the logic of company incorporation. There is no objective basis upon which an objective bystander could interpret the plaintiff's visit to the first defendant's premises in that light.

50.               Apart from anything else, the contracting party on the vendor's side would necessarily be the owner or supplier of the System. Accordingly, the second defendant could not be a contracting party unless he was personally selling or supplying the System from his own resources, independently of or jointly with the first defendant, either of which would seem an unusual arrangement in a commercial setting. In such a scenario the second defendant would presumably be breaching his fiduciary duty to the first defendant to the extent that he was buying and selling on his own account rather than on its behalf. The plaintiff, himself a company director, would surely not have wished to induce or be a party to any such breach of duty or of contractual relations.

51.               The circumstances are inconsistent with any contention that the contract was with the second  defendant alone. If such a personal transaction was to be effected by and for the second defendant's benefit and he was the contracting party, then it is surprising that the transaction was handled by the first defendant's employees and that the purchase price was paid to the first defendant.

52.               However, the plaintiff's claim is even more remarkable. He contends that he contracted with both the first and second defendants. This extraordinary proposition would suggest, without any evidential basis beyond the plaintiff's assertion, that the company and its director jointly owned, sold and supplied Slurryquip products such as the umbilical system. It would be an unusual arrangement for a company to jointly high value products in partnership with its officers or employees. In that scenario, the invoices would have been in the names of both the first and the second defendants. There is no evidence to support such a suggestion. The documents (invoices, emails and receipt) furnished to and accepted by the plaintiff and his companies clearly presented the first defendant, and only the first defendant, as the vendor. The only tenable inference is that the first defendant was the sole vendor. There is no objective basis for suggesting that the plaintiff or his companies could reasonably have believed that they were negotiating with the second defendant in a personal capacity or that they had reached a contract with him personally. The second defendant were clearly acting as the first defendant's agent and representative and contracting on its behalf rather than in a personal capacity. Any claim to the contrary is bound to fail.

Did the Plaintiff buy the System in his own right?

53.               The plaintiff's main basis for claiming that he personally bought the system appears to be his assertion that he paid for it from his UK bank account. However, his position on this issue was inconsistent. His affidavits referred to the bank account as his own but in oral submissions he said that he shared the account with Autotech NI. He also suggested that he used that account because Autotech Ireland did not have a UK bank account. The latter explanation might imply that the sterling account was used to settle the first defendant's invoice as a matter of logistical convenience or efficiency or cost saving, in which case it would have no bearing on the identity of the contracting parties. Of course, the first defendant was willing to accept payment in either currency but the plaintiff may have preferred to pay in sterling for some reason, perhaps to reduce bank charges or to take advantage of exchange rates or for cash flow reasons. The contemporaneous documentation may imply that the System was destined for Autotech Ireland but that delivery was taken at the first defendant's Downpatrick premises to avoid the delivery cost, with the buyer making its own arrangements in that regard.

54.               The fact that the plaintiff personally arranged to transfer the entire price of the System to the first defendant contradicts his position that the second defendant was a party to the transaction. The transfer details supplied by the plaintiff via the Barclays electronic transfer were not consistent with the plaintiff's current contention that he bought the system in his own right. If that had been the intention the reference should have been his own name, not Autotech MOT. The transfer details might suggest that Autotech NI was the buyer but that still would not support the Plaintiff's claim in these proceedings.

55.               I am concerned by the plaintiff's failure to exhibit documents showing how he and his companies treated the transaction at the relevant time. He could have exhibited his contemporaneous books and records, including VAT and other tax records and those of the two companies and their financial statements, management accounts and bank statements and ledgers. These would have shown how he and the companies associated with him contemporaneously accounted for the payments. He could also have obtained testimony from any external accountant(s) who prepared his or his companies' accounts and tax returns. He did not do so. The documentation which he did exhibit was minimal and inconclusive. T he objective evidence and contemporaneous documentation do not support his contention that he was a contracting party, buying the System in his own right. Nor do the invoices generated following the parties crucial meeting, almost certainly based on information furnished by him.  Nor do the emails or the receipt for the deposit.

 

Who did buy the System?

56.               The 13 January 2021 invoice was addressed to Autotech Ireland as were the two invoices grounding the District Court proceedings. None of them charged VAT, as required if, as the plaintiff now contends, Autotech NI was the buyer - in that scenario the customer would also have required a VAT invoice. The plaintiff would have known this.

57.               The way the deposit was paid and the wording of the receipt may suggest that the parties initially envisaged that Autotech NI would buy the System. However, the later emails and the invoice - which were the basis on which the deal closed - consistently tell a different story, suggesting that, presumably after payment of the deposit on 24 December 2020, the plaintiff and his associated companies determined that Autotech Ireland should buy the System and that he communicated this to the first defendant. This is the only plausible explanation for the details in the 13 January 2021 invoice.

58.               The emails show that the plaintiff was concerned about cost, delivery arrangements and currency. Such factors may have influenced his decision to nominate Autotech Ireland as the intended purchaser. In any event, I am satisfied that he must have given the first defendant the necessary details of Autotech Ireland's name and address, thus enabling the third defendant to generate the invoice which she sent to the plaintiff on 13 January 2021 and which became the basis upon which the System was provided - the main evidence of the contract. Without such intervention, the first defendant would doubtless have proceeded on the basis originally envisaged (as reflected in the deposit) and addressed the invoice to Autotech NI. Accordingly, I am satisfied that, before the transaction completed, Autotech Ireland had been accepted by all parties as the buyer.

59.               The plaintiff's focus in submissions shifted to contend that Autotech NI (rather than Autotech Ireland) was the buyer. Several points arise from the plaintiff's change of position. Firstly, the new position is also inconsistent with most contemporaneous documents. The contemporaneous evidence as a whole suggests a mutual understanding that Autotech Ireland ultimately bought the System and was liable for the price (and whether it paid directly or procured one of its principals or an associated company to do so is irrelevant).

60.               The most fundamental point is that the evidence suggests that there are only two realistic candidates as buyer. The most compelling evidence points to Autotech Ireland but a case may be made for Autotech NI based on the deposit and also if it was the source of the payment of the balance of purchase price. The servicing contract would also support that theory. However, for present purposes it does not matter which of those companies bought the System in January 2021. If the customer was Autotech NI, then Autotech Ireland might have raised that as a defence in the District Court proceedings (in which case Autotech NI would have been added to the proceedings or separate proceedings would have been launched against it in Northern Ireland). However, even if Autotech NI had bought the System, the plaintiff  would still have no standing to bring these proceedings. He would still not be a party to the contract. His alternative position, that it was Autotech NI which bought the System, does not advance his case.

The Significance of the 7 December 2022 Invoice

61.               The plaintiff noted that an invoice generated by the first defendant's agent in Cork, Mulcahy Agri Services Limited for servicing the system identified Autotech NI as the customer.  No VAT was charged, as would have been necessary if the services were supplied to Autotech Ireland. However, that invoice is of limited relevance to these proceedings as it was issued by the first defendant's Irish service agent rather than by the First Defendant and it was not one of the invoices in issue in the District Court proceedings. The first defendant's invoices are more relevant and they tell a different tale. I t would, of course, have been unlawful for the plaintiff to have engaged with the first defendant's Irish representative under the banner of Autotech NI if his objective was to avoid Irish VAT but I make no finding on that point because there was no evidence in that regard and I do not need to determine that issue for present purposes. The point is that the sale of the System in January 2021 and its subsequent servicing nearly 2 years later by a different party are entirely different transactions. The 7 December 2022 invoice does not affect my conclusion as to the parties to the sale of the System.

62.               In the light of the foregoing conclusions, the plaintiff's contractual claims are unstatable and must be dismissed. The first defendant was a contracting party but he was not contracting with the plaintiff. The plaintiff has no basis to bring a claim in contract. Nor do the pleadings disclose a statable basis to contend that the Applicants owed him a extra-contractual duty of care. If any such duties were owed they were owed to the contracting party (and presumably largely defined and delineated by the contract) and only the party to the relationship could sue on foot of such duties. He is not the proper party to advance the claims or counterclaims which he seeks to agitate. Autotech Ireland could have contested the District Court proceedings on the basis of the contentions advanced in these proceedings and if it was not the contracting party then it should have advanced that defence as well. It failed to do so. Judgement was obtained against it in accordance with the District Court Rules. The plaintiff has no right to bring these proceedings in his own name.   Accordingly, the  claim appears to be based on a false premise because he is not a party to the contract (and nor is the second defendant).

63.               For completeness, I should note that since neither side alleged that the contract was governed by the law of Northern Ireland, I have applied Irish law. A case could have been made for the application of Northern Irish law but I doubt that it would have affected the outcome. The basis for applying Northern Irish law would be that the original contract for the sale of the System was formed in Northern Ireland and at least one party, the supplier, was based in Northern Ireland. Delivery also took place there. Although neither party made any submissions as to the governing law, the plaintiff did make submissions, which I considered were misconceived, that the debt proceedings against Autotech Ireland should have been issued in Northern Ireland or that leave was required to issue those proceedings.  The common law doctrine of privity of contract has been changed in the United Kingdom by the Contracts (Privity Rights of Third Parties) Act 1999 (the 1999 Act), which is applicable in Northern Ireland subject to modifications which are not relevant to these proceedings). The legislation allows certain parties to sue on foot of contracts in specified circumstances even though they were not parties, such as (a) where the contract expressly provides that they can, or (b) the term they are seeking to enforce purports to confer a benefit on them. But neither of those scenarios seem to apply on a proper construction of the contract in this instance. Furthermore, s.1(3) states that the third party "must expressly identified in the contract by name, as member of a class or as answering a particular description...". Accordingly, the 1999 Act does not appear to apply and there is no obvious difference in the law of the two jurisdictions which is relevant for present purposes. However, I do not need to determine that issue. In the absence of foreign law being pleaded, I have applied Irish law.

Other defences raised by the Plaintiff

64.               The plaintiff raised other defences to the motion which were also without foundation:

a.       I am not satisfied that there is any substance in the point about the difference between the address of Autotech Ireland and the address used in the District Court proceedings. The plaintiff received the 13 January 2021 invoice (by email) and commented on it. If he had any concern as to whether it was addressed to the correct corporate entity then he would have raised those concerns at the time.

b.       Two issues arise from the plaintiff's claim that Autotech Ireland was not properly served in the District Court proceedings.:

                                                              i.      Firstly,  Autotech Ireland should have instructed its lawyers to make the appropriate application to the District Court as a matter of urgency. It did not do so although the plaintiff says that such an application will be brought. Time is of the essence in such consequences and an unnecessary delay could prove fatal to any such application even if it was otherwise well made.

                                                            ii.      Secondly, although I need not determine that issue, the evidence confirms that the District Court proceedings were served at Autotech Ireland's registered office in accordance with Irish law. The plaintiff says that the company now operates from a Galway address and it was never properly notified of the proceedings. However, the registered office did not change. The plaintiff submissions gave the impression that he would have expected that issue to have been dealt with on the Company's behalf. However, he did not take steps to update the Register. In terms of the public record and the requirements of Irish law, Autotech Ireland's registered office was the appropriate address for service. The responsibility for updating it rested with Autotech Ireland and its secretary (the plaintiff). They cannot complain when proceedings were served at the registered office in accordance with law. Individuals, such as the plaintiff, who carry on business through companies or who serve as directors and secretaries have statutory responsibilities. These include that ensuring that books, records and filings for such entities are accurate and current, including as to the registered office. The plaintiff cannot take advantage of his own failure to carry out his responsibilities as company secretary. Accordingly, the first defendant will doubtless say that Autotech Ireland is estopped from denying that service was duly effected.

                                                          iii.      In any event, the adequacy of service of the District Court proceedings is a matter for the District Court. The lawyers representing Autotech Ireland do not appear to have made any application to the District Court which is the appropriate way to pursue the issue.

c.       In response to the Applicants' objection that the complaints as to the quality of the System could and should have been raised in the District Court proceedings, the plaintiff argued that any such counterclaim would have exceeded the District Court's monetary jurisdiction. However, as the Applicants' counsel noted, a defendant can counterclaim for damages in excess of the District Court jurisdiction and apply for the transfer of the proceedings to the Circuit Court or High Court. It did not do so.

d.       I disagree with the  suggestion that the application is premature in advance of a defence being filed. As appears from decisions such as Vico Ltd., Riordan, Dunnes, if the Court is satisfied that the proceedings are an abuse of process or frivolous, vexatious or bound to fail, it is neither necessary nor desirable that the defendant should be put to the cost and effort of entering a defence.

e.       I disagree with the plaintiff's comments about the Slurryquip document on which the second defendant gave the price of the system. The document was on "Slurryquip" letterhead, and his affidavits did not challenge the second defendant's averment that the first defendant traded under that name and sold the Slurryquip range.

f.        There is no basis to suggest that the handwritten estimate on "Slurryquip" stationery somehow rendered the second defendant a contracting party. The document did no more than confirm pricing. It did not constitute a concluded contract on its face. Indeed, the plaintiff's own emails of 13 January suggest that important details (including as to price, currency and delivery) were still being negotiated. Accordingly, that document does not support the proposition that the second defendant was contracting in his own right nor did it identify the plaintiff as a party.

Findings

65.               It was an abuse of process to launch fresh proceedings to litigate complaints about the System which could and should have been litigated in the original proceedings. Henderson v. Henderson applies. Parties are not permitted to advance a case in subsequent proceedings which could and should have been advanced and resolved in earlier proceedings. Although the plaintiff was not personally a party to the District Court proceedings, authorities such as Vico Ltd, confirm that the parties need not be identical to trigger the rule in Henderson v. Henderson providing that there is a sufficient degree of identity between the parties in previous and current proceedings , which there was in this case.

66.               The claim against the first and second defendants is premised on the assertion of a contractual nexus between the plaintiff personally and those defendants. There is no credible evidence before the Court from which it can be inferred that the plaintiff contracted personally for the purchase of the System. Nor is there credible evidence that that either the plaintiff he (or even the two companies) had any contractual nexus with the second defendant in the latter's personal capacity.

67.               I do not accept the plaintiff's bald assertions that he bought the system in his individual capacity or that both the first defendant company and its director, the second defendant were contracting parties on the vendor's side. There is no credible basis on which the plaintiff can claim either that; (a) the second defendant was a party in his own right  to the contract to sell the system; (b) the plaintiff himself was a party to the contract in his own right. The evidence confirms that the contract for the sale of the system was between Autotech Ireland (or, possibly, Autotech NI) as the purchaser and the first defendant as vendor; this conclusion is inescapable as far as the major transaction is concerned.

68.               For present purposes I accept the possibility that, when the plaintiff originally visited the first defendant's premises on 15 December 2020 and when the deposit was paid on 24 December 2020, the parties may have envisaged that the product would be delivered and billed to Autotech NI. It does seem from the 13 January 2021 emails that the plaintiff may also have raised the possibility that delivery might be accepted at the first defendant's premises, to avoid the delivery charge. However, those possibilities do not advance the claim pleaded in these proceedings.

69.               Likewise, I accept that the final servicing contract in December 2022 may have been between Autotech NI and the first defendant's Cork agent, Mulcahy Agri Services Limited. Once again, that does not assist the plaintiff in resisting the current application.

70.               The plaintiff's claim against the first and second defendants are based on the demonstrably false premise of a contractual nexus between them on the one side and the plaintiff in his personal capacity. Accordingly, the proceedings against them are bound to fail and/or are frivolous and vexatious having no reasonable chance of succeeding.

71.               The plaintiff's contention that he and the second defendant contracted personally with each other essentially rests on the fact that the two of them met at the first defendant's premises to discuss the System. This falls far short of establishing that either party could reasonably be regarded as having personally contracted. The claim is bound to fail or has no reasonable chance of succeeding against the Applicants.

72.               There is no credible evidence that the plaintiff or the second defendant were contracting in their individual personal capacity. To the contrary, the contemporaneous evidence confirms that Autotech Ireland and the first defendant were the contracting parties. I am satisfied that the proceedings should be dismissed as bound to fail or as having no reasonable prospect of success. I am also satisfied that the proceedings are an abuse of process since all matters raised in these proceedings could and should have been raised in the District Court proceedings and it was open to the plaintiff to join himself and the first and /or third defendants to those proceedings. He instead launched this tactical suit as a collateral attack on the District Court Order when enforcement was threatened.

The Case Against the Third Defendant

73.               The third defendant is a part time clerical employee of the first defendant. Paragraphs 22 and 23 of the Plenary Summons set out the claim against her:-

"22. The Plaintiff's claim is that the third  Defendant namely Ayhett Rosapa did e-mail the Plaintiff herein stating that 'we received the last payment, it is now fully paid thank you very much'

23. The Plaintiff's claim is that the third  Defendant namely Ahyett Rosapa thereafter did fraudulently manufacture an invoice and e-mailed it to one of the Plaintiff's companies alleging money that was owing and due to which the said company had no contract with the Defendants nor did the said company pay for any part of the above umbilical system, thus thereafter causing further damage to the plaintiff"

74.               Paragraphs 22 to 24 of the Statement of Claim are to much the same effect:-

"22.     The Plaintiff's claim is that the third defendant emailed the Plaintiff in person regarding all the payments which were made by the Plaintiff in person according in accordance with the contract.

23.       The Plaintiff's claim is that the third defendant namely Ayhett Rosapa did e-mail the Plaintiff herein stating that 'we received the last payment, it is now fully paid thank you very much.' Therefore, confirming that there was no money owing and due to the first and second  defendants for the purchase of the umbilical system by the Plaintiff herein.

24.       The Plaintiff's claims is that the third defendant thereafter did fraudulently manufacture an invoice and emailed it to one of the plaintiffs companies alleging money that was owing and due to which the said company had no contract with the defendants, nor did the said company pay for any part of the above and political system, thus thereafter causing further damages to the plaintiff."

75.               No particulars have been furnished which could possibly support the plea of fraud against the third defendant (or, indeed, any defendant) nor do the contemporaneous documents support such a plea. The plaintiff asserts an inconsistency between her 14 January 2021 email confirming receipt of all and the invoices subsequently generated by her which he describes as fraudulent and also claims that none of the invoices should have been addressed to Autotech Ireland. None of these assertions provide a coherent and credible basis for naming her as a party let alone for accusing her of fraud, an allegation which was as unsubstantiated as it was unfair. It is clear that the email saying that nothing was owed honestly reflected the author's understanding at that point and referred to the payments due on the original sale of the System. There is no evidence which would give rise to a reasonable doubt as to whether the subsequent invoices, 1 April 2022 and 2 March 2023 , reflected the third defendant's honest understanding of the position when those invoices issued much later. If the plaintiff considered that the invoices should not be addressed to Autotech Ireland then he should have informed the third defendant when she sent him the first such invoice on 13 January 2021 rather than 4 years later. To join her as a defendant and to accuse her of fraud on such flimsy grounds was unconscionable.

76.               All emails by the third defendant were sent from her work email address at "office@slurryquip.com" and the nature of the company is also recorded at the foot of the emails. The invoices which the plaintiff objects to were on the first defendant's headed notepaper and were prepared in the course of the third defendant's employment. They were the basis for the first defendant's District Court Claim Notice. It is clear that the third defendant was at all times acting in the course of her employment. No evidence has been advanced which would suggest that she acted other than in good faith.  No statable cause of action arises against her. The only possible conclusion is that she was acting in the course of her employment and that she has no individual liability to the plaintiff. Accordingly, the proceedings against her disclose no reasonable cause of action and are bound to fail. Their issuance can only be seen as an attempt to intimidate the first defendant and its staff. It was certainly an abuse of process.

77.               The Courts have often made clear that it is highly inappropriate that unjustified claims should be advanced, particularly unjustified allegations of fraud. For example, O'Moore J made the following observations in the recent Court of Appeal judgment in Howley v McClean [2025] IECA 77,:

"4. The making of an allegation of fraud, of fraudulent misrepresentation or of deceit, is a very serious step to take in any litigation. This arises from the nature of any such claim. It is, in essence, that the fraudster has by use of dishonesty attempted to obtain some benefit from the defrauded individual.'...

 

 

33. Far too frequently over the last number of years litigants, either acting by themselves or represented by lawyers, have resorted to the making of vitriolic but groundless allegations in defending or advancing their position. These allegations have been made against other litigants, against lawyers (whether solicitors or counsel) and against judges. Where possible, pertinent and proportionate steps should be taken to address and deter such activities...."

The proceedings amount to an abuse of process.

78.               I accept the defendants' submission that the proceedings generally are an abuse of process by virtue of the apparent attempt to recast the contractual arrangements regarding the purchase of the System by substituting the plaintiff as the contracting party and by gratuitously naming the second and third defendants as parties. They are a transparent attempt to mount a collateral attack on the District Court judgment. Barrett v Beglan [2009] IEHC 293 confirms that dragging parties into a dispute for an ulterior purpose is an abuse of process.

79.               Although the parties to this litigation differ from the District Court proceedings, they are still an attempt to avoid the consequence of the District Court judgment. If the plaintiff genuinely believed that he contracted personally with the first and the second defendants (or that the NI company did so) then, even leaving aside his failure to point this out in his contemporaneous emails, this could and should have been adduced as a defence in the District Court proceedings. Indeed, he could have sought to join himself and the second defendant and Autotech NI to those proceedings.

80.               The District Court proceedings were predicated on the recovery of payment for the first defendant's invoices 2414 and 2996.  The plaintiff now says that those invoices were fraudulently prepared by the third defendant but any such defence could and should have been adduced in the District Court proceedings. He also contends that that the system was itself defective but, once again, this defence should have been mounted in the District Court proceedings (or as a set off or counterclaim) where payment was sought for the upgrade to the System. The plaintiff and his associated companies should have raised the issues in the District Court proceedings and, if necessary, sought to extend time for Autotech Ireland to appeal or set aside the District Court Order if there were grounds to do so.

81.               In summary, there was an appropriate channel for the appropriate party or parties to agitate any legitimate issues in respect of the underlying dispute. Whether any such route still remains open is a matter for the District Court, and it would be for that Court to determine whether the first defendant was properly served and whether it should reopen the proceedings. I express no view either way on that issue which is not before me. As far as these proceedings are concerned, the plaintiff's case was largely based on bare assertions and an improbable characterisation and interpretation of routine actions on the part of the second and third defendants in the course of their duties on the first defendant's behalf. His bare assertions fall far short of the evidence which would be needed to satisfy me that the claim is statable. To the contrary, I am satisfied that it is an abuse of process being brought for a collateral purpose and it is bound to fail.

82.               As I am striking out the Plaintiff's application, it appears that the Defendants are presumptively entitled to their costs.  However, if either party wishes to make submissions in respect of whether that or any other costs order should be made or concerning any other aspect of this judgment, then they have liberty to file submissions (of 1500 words or less) within 14 days of the date (and if they do not intend to file submissions they should likewise inform the Court within the same period).  Depending on the terms of such submissions (if any), I will either relist the matter to deal with any outstanding issues or instruct the registrar to perfect the order in appropriate.

APPEARANCES

Mr. John Harrington, litigant-in-person, the plaintiff.

Mr. Andrew King BL, instructed by Tormeys Solicitors LLP, for the defendants.

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