Supreme Court of Ireland Decisions

1. These proceedings have a lengthy and somewhat complex history. By an agreement in writing dated the 6th day of December, 1982 William Ewing (the late father of the above named Plaintiff/Appellant Robert Ewing) agreed with Anthony Kelly (the above first named Defendant/Respondent) for the sale to him of the lands comprised in Folio 1347 of the Register of Freeholders County Galway (sometimes referred to as ‘The lands of Abbeyville’) for the sum of £45,000. By deed of transfer dated the 2nd day of January 1983, the lands were transferred by William Ewing and, on the second day of May 1983, Anthony Kelly was registered as owner thereof. In the following years it is clear that the relationship betweenAnthony Kelly on the one hand and the Ewings (William and Robert) on the other hand was very unhappy.

2. By Equity Civil Bills one dated the 15th day of June, 1987 and the other dated the 11th October, 1988 Anthony Kelly alleged that the Ewings had trespassed on the Abbeyville lands and obstructed a right of way to which Mr Kelly was entitled. Both defences contained counterclaims in which it was contended that the agreement for sale dated the 6th December, 1982 and the transfer dated the 2nd January, 1983 were invalid on the grounds that William Ewing “did not know and appreciate and was incapable, firstly by reason of infirmity of health, mind and body, secondly by reason of influence wrongly exercised over him, and thirdly, by lack of proper independent legal advice of knowing and appreciating the contents and nature of the said documents and of his actions in executing the same” and on the other grounds referred to therein. The first of the defences and counterclaims was delivered on the 13th day of October, 1988 by the above thirdly named Defendants, CP Crowley & Co. The second defence and counterclaim was delivered on the 6th of March, 1989 by the above named fifthly named Defendants/Respondents Egan O’Reilly & Co - a notice of a change of solicitors having been filed on the 14th day of December, 1988. After a series of interlocutory applications the two claims and counterclaims came on for hearing before Judge Cassidy in the Circuit Court in May, 1990. The matter was apparently part heard at that time but subsequently the Ewings served a further notice of change of solicitors as a result of which Messrs Burke & Co ( the sixthly named Defendants and Respondents) replaced Messrs Egan & Company as Solicitors on behalf of the Ewings. Thereafter Judge Cassidy made an order for discovery on the 12th of June, 1990. That order necessarily resulted in further delay.

3. Ultimately the claims and counterclaims came on for hearing before Judge Harvey Kenny in the Circuit Court on the 12th day of June, 1996. The order of Judge Kenny recites and identifies senior and junior counsel who appeared on behalf of William Ewing instructed by Messrs Burke & Company Solicitors and further recites that there was no appearance on behalf of Robert Ewing the secondly named Defendant in those proceedings. By his order Judge Kenny ordered and directed (among other things) the following:-

4. From that order the Defendants, William Ewing and Robert Ewing, sought to appeal to the High Court.

5. The appeal came before Ms Justice Mella Carroll in Galway on the 19th day of November, 1996. Ms Lorna Burke, Solicitor of Messrs Burke & Co, Solicitors for William Ewing sought an adjournment. The order goes on to recite that there was no appearance in Court on behalf of Robert Ewing. In those circumstances the learned Judge of the High Court ordered that the appeal by Robert Ewing, the secondly named Defendant, be struck out and she adjourned the appeal by Mr William Ewing to the next sitting of the High Court in Galway on terms that the witness expenses incurred for the hearing on the 19th of November, 1996 should be discharged in advance of the next sitting of the High Court in Galway.

6. The appeal by Mr William Ewing came before Mr Justice Kelly sitting in Galway on the 22nd of July, 1997. As appears from the recitals to that order the first named Defendant, William Ewing represented himself at the hearing of the appeal.. Again it is recited in the order - as one might expect - that evidence was heard on behalf of the Plaintiff and of the Defendant and having done so the Court went on to make a series of orders which included the two orders following:-

7. In addition the learned High Court Judge upheld the decision of the Circuit Court in relation to the allegations of trespass made by Mr Kelly against the Ewings and in relation to costs he ordered:-

8. As the decision of the High Court on appeal from the Circuit Court is final and unappealable that decision concluded the issue as between William Ewing and Anthony Kelly and all persons claiming through them in respect of the issue as to whether the sale and transfer of the lands comprising Folio 1347 of the Register of Freeholders County Galway was valid and binding on the parties thereto. It is important to stress that the issue was determined once and for all irrespective of the arguments made or evidence adduced by either party. The circumstances in which a final decision of either the High Court or Supreme Court might be reopened are exceptional indeed and there is no reported case in which an argument to the effect that a final decision should be reopened has succeeded.

9. In those circumstances it was, perhaps, surprising to find that on the 6th day of May, 1999, Robert Ewing instituted the proceedings which give rise to this appeal. In the plenary summons and in the statement of claim delivered pursuant thereto on the 24th August, 1999, having identified the interests of the nine named Defendants the Plaintiff went on, in the statement of claim, to say:-

10. In those terms it is clear that Mr Robert Ewing was attempting to reopen the issue raised by his father in the counterclaim in the Circuit Court proceedings and to combine with it allegations of negligence, and indeed fraud, by the four firms of solicitors who did at different times act for Mr Ewing Senior, in relation to his dispute with Mr Kelly. Of the first and secondly named Defendants it was said that they “fraudulently represented that they were the plaintiff’s father’s friends” and further that they “abused a trust the plaintiff’s father had placed in them and acted together against his interest for mutual gain and out of a desire to end his father’s connections with the said lands and establish them as Roman Catholic lands”.

11. In relation to the thirdly named Defendant, CP Crowley & Co, it was said that they “co-operated and assisted” an agent of the first and secondly named Defendants in having the proceedings continually adjourned. It is not clear from the pleadings what case is made against the fifthly named Defendants - Egan O’Reilly & Co - save to say that “they undertook the task from them [the fourthly named Defendants] to bring about a settlement of the dispute”. The case against the sixthly named Defendants - Burke & Co - is set out in paragraphs 30, 31 and 32 of the statement of claim and involves allegations that that firm of solicitors sought to prevent the resumption of the hearing of the proceedings which took place in May, 1990, and attempted to force the Plaintiff’s father into a settlement on the eve of the hearing by representing that his barrister was not available. It is asserted that the sixthly named Defendant had the Plaintiff’s appeal to the High Court struck out. That contention appears to be at variance with the facts as they appear from the order of the High Court. The allegation that this firm of solicitors attempted or succeeded in excluding the Plaintiff from the earlier proceedings “and relied on the Garda Siochana at Lough Rea to keep him away from the area through intimidation” is not supported by any evidence. The claim against the Law Society of Ireland appears to be based on the allegation that when Mr William Ewing proposed to institute proceedings for negligence against solicitors retained by him he sought and obtained from the Law Society the names of three firms of solicitors who might act for him in that connection and that the persons so nominated were unsuitable or unwilling to undertake that task.

12. In those circumstances an application was made by the first six named Defendants for an order that the proceedings against them and each of them be struck out pursuant to the Rules of the Superior Courts or the inherent jurisdiction of the Court on the grounds that there was no possibility that the Plaintiff could succeed in the action as against them. The matter came before Mr JusticeO’Sullivan in the High Court, who for the reasons set out in the judgment delivered by him on the 16th day of May, 2000, acceded to the application. It is from that judgment and in the order made pursuant thereto that Robert Ewing appeals to this Court pursuant to a notice of appeal dated the 11th day of December, 2000.

13. It is clear beyond debate that Mr Robert Ewing feels intensely the wrongs which he believes were perpetrated against him and his father and that he has over many years examined and analysed what he believes to be the actions, motivations and intentions of the Defendants. His understanding of the facts is set out in nine lengthy affidavits sworn by him between the24th day of November 1999 and the 27th day of April 2000 and the many exhibits contained therein. In addition Mr Ewing prepared a written submission for this Court which has been carefully read and reread. The material prepared by Mr Ewing is directed almost exclusively to his analysis and interpretation of the motivation of the parties with whom his father had dealings in relation to the sale of the lands of Abbeyville. He believes that the conduct of the Defendants or, at least some of them, was to say the least, suspect and it is his belief and understanding that there is a constitutional obligation on this Court and that there was a constitutional obligation on the Circuit Court (and the High Court on appeal from it) to investigate those suspicions. That is an argument which was firmly but delicately rejected by the learned High Court Judge, Mr Justice O’Sullivan. The learned Judge explained at page two of the transcript of his judgment that:-

14. In my view the learned Judge was entirely correct as a matter of law and commendably sensitive in explaining his functions in that way. Mr Robert Ewing may be mistaken as to the manner in which courts of law seek to attain justice. In Ireland the Judicial system is adversarial. Each party asserts the legal rights claimed by him and puts forward the evidence available to him in support of those allegations. The other party has the right to cross-examine the witnesses called on behalf of his opponent. With the solitary exception of the application for an order of habeas corpus, the Courts do not, in this jurisdiction, themselves carry out investigations or inquiries; it is left to the parties themselves to make their case on both fact and law and for the Judges to adjudicate upon the evidence and argument placed before them. The reference by Mr Robert Ewing to the decision of this Court in In Re Haughey [1971] IR 217 shows how misunderstandings may arise in relation to our judicial system. In that case Mr Padraic Haughey appeared as a witness before a committee of DáilÉireann. The argument made on his behalf was that the questions put to him and the evidence adduced in relation to his alleged activities constituted a case against him and that, accordingly, he was entitled to be represented by lawyers and have the evidence against him tested on cross-examination. That contention was, as Mr Ewing points out, upheld. Effectively what Mr Haughey sought were the rights enjoyed by a defendant in legal proceedings. These were, however, the rights which have already been accorded to Mr Robert Ewing and his late father in relation to the matters of legal controversy in which they were engaged. The Judge of the Circuit Court - Judge Harvey Kenny - heard the argument and evidence advanced in relation to the claim by Mr William Ewing as to the invalidity of the contract for sale of the Abbeyville lands. He rejected that claim. The matter was reheard by Mr Justice Kelly in the High Court. He too heard evidence and argument and rejected the claim that the agreement for sale was invalid. That, as I have already said, concluded thematter and any further claim in any proceedings in this jurisdiction seeking to reopen this issue would be undoubtedly an abuse of the process of the Court. On that basis it is clear that the claim against Mr Kelly in the existing proceedings was rightly dismissed.

15. Apparently Mr Robert Ewing believes that the other Defendants formed some part of a conspiracy against him. In his written submission to the Court he put it this way:-

16. Later in his submissions Mr Ewing claimed to identify the issue in this matter in the following terms:-

17. The case against the four solicitors is nowhere clearly stated. It might be expected that a case in negligence or breach of contract would be pleaded against the solicitors for the plaintiff or his late father. In fact, no claim for damages under either such heading is made in the reliefs sought, which are almost exclusively concerned with the issue of land ownership. More importantly, the statement of claim does not contain any coherent or identifiable allegation of any act or default against any of these defendants which could sustain such a claim. As against both the third and fifth named defendants, it is pleaded that they were “withdrawn” ie, dismissed by the late William Ewing. In the former case, this is alleged to be because of “an attempt to set up the plaintiff and his father” ; in the latter case it is alleged to be because of undertaking the task allegedly assigned to them by the fourth defendant, The Law Society, “to bring about a settlement of the dispute and end the danger of legal action being taken against the second named defendant”. In each case, it is clear that the supposed intentions of these defendants are claimed to have been frustrated by the action of their dismissal. As against the sixth defendant, an identical allegation is made together with a number of unconnected allegations said to form part of a “saga of misconduct and racial discrimination”. What is absolutely clear about any of these allegations is that they relate to the conduct one way or another of the proceedings concerning the land. Yet, the plaintiff has failed to point to even one plea of an act of negligence or breach of contract against any of these firms of solicitors - or by extension the fourth named defendant - which he claims to have contributed to the unfavourable result, from the plaintiff's point of view of those proceedings.

18. The principal concern, therefore, of the plaintiff, to which all of the allegations against the other defendants appear to be secondary, is to reopen the land dispute. This, as already stated, has been conclusively determined against the plaintiff's father. The plaintiff is bound by that decision.

19. The learned trial Judge rightly and necessarily rejected the contention that the action of the Law Society in providing names of solicitors who would be prepared to act for the Plaintiff in proceedings instituted by him against solicitors was or could have amounted to negligence.

20. The learned High Court Judge concluded his judgment, as he had started it, by reiterating that his judgment was confined to a consideration of technical issues concerned “with pleadings, the legal concept of a cause of action, legal causation and recoverable loss rather than any evaluation of the matters which are clearly of concern to the plaintiff and are the subject of his complaint, but which are, in my opinion incapable of being made the subject of justiciable controversy in legal proceedings in these Courts”.

21. Again I am in complete agreement with the sentiments expressed by the learned High Court Judge and the understanding manner in which he expressed them.

22. Whilst one will always be sympathetic to any litigant who feels intensely about wrongs which he believes he endured, some sympathy must be reserved for the other parties to protracted and costly litigation. At the end of the day the matter cannot be determined on the basis of sympathy but on those legal principles which were analysed and applied by Mr Justice O’Sullivan. In my view he correctly and necessarily dismissed the proceedings against each of the first six named Defendants. Accordingly I would dismiss the appeal and affirm the order of the learned High Court Judge.