Barry v Buckley

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELIO
• Judgment Date: 09 July 1981
• Neutral Citation: 1981 WJSC-HC 1485
• Court: High Court
• Docket Number: [1981 No. 5657P.]
• Date: 09 July 1981

Barry v. Buckley

BETWEEN:

DESMOND BARRY

Plaintiff

and

MAURICE A. BUCKLEY

Defendant

1981 WJSC-HC 1485

1981 No. 565P

THE HIGH COURT

1 JUDGMENT OF MR. JUSTICE COSTELIODelivered 9th day July 1981

2 A disappointed purchaser can, by instituting proceedings for specific performance, and by registering a lis pendens against the land which he alleges he has purchased, effectively prevent a resale of the lands for a considerable time, extending perhaps over several years. Obviously substantial injustice could thereby result, both to the owner of the land and to a subsequent innocent purchaser. The Courts should be able to provide a speedy means, in suitable cases, for determining the issues between the vendor and the first purchaser. It seems to me that such a means is to hand. A vendor who is sued by a purchaser for specific performance may bring a motion (which is heard on affidavit) to stay or strike out the proceedings and for an order that the lis pendens be vacated. In clear cases the Court can so order, its jurisdiction arising in two ways. Firstly, the Rules of Court provide (Order 19 Rule 28)that:

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or the defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just".

3 The corresponding English Rule (Order 18 Rule 19) which permits the Court to make an order striking out a pleading on the ground that itdiscloses no reasonable cause of action also specifically provides that no evidence is admissible on such an application. Although no such express prohibition exists in our Order 19 I think nonetheless that the Court can only make an order under this Rule when a pleading on its face discloses no reasonable cause of action. But apart from Order 19 the Court has an inherent jurisdiction to stay proceedings and on applications made to exercise it the Court is not limited to the parties pleadings but is free to hear evidence on affidavit relating to the issues in the case. (See: Wyllie, "The Supreme Court of Judicature (Ireland) Act, 1877" pages 34 to 37, and "The Supreme Court Practice, 1979" paragraph 18/19/10). The principles on which it exercises this jurisdiction are well established - basically its jurisdiction exists to ensure that an abuse of the process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the Plaintiff's claim must fail (See, Buckley, J., Goodson .v.Grierson 1908 1 K.B. 761, 766). This jurisdiction should of course be exercised sparingly and only in clear cases. But it is one which enables the Court to avoid injustice particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. Ifhavingconsidered the documents the Court is satisfied that the Plaintiffs 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. Having done so the Court can also order that the lis pendens be vacated. (As to the application of the Lis Fendens Act 1867 to Ireland see Flynn .v.Buckley, the Supreme Court, 24th April 1980 (unreported) over-ruling Giles .v. Brady 1974 I.R. 462).

4 The Court's jurisdiction to act as I have just indicated was exercised by Mr. Justice McWilliara in Kelly .v. Kinneen and others 29th April 1980 (unreported). In a somewhat analagous situation in England, when the Court had been asked on an interlocutory motion to vacate a caution registered in the Land Registry by a Plaintiff in a specific performance suit, the Court's power to deal with the matter in a summary way was explained by the Master of the Rolls (Lord Denning) asfollows:

"The entry of a caution casts a dark shadow on the property. It paralyses dealings in it. No one will buy the property under such a cloud ... I know that the rules of court do not prescribe any summary procedure such as Order 14 does for judgment or Order 86 for specific performance. But that is no obstacle. These courts are masters of their own procedures and can do what is right even though it is not contained in the rules. If it is drawn to the attention of the court by affidavit or otherwise, that a caution has been entered when it ought not to be, then the Court"

"can order it to be vacated forthwith. In particular if the cautioner does...