Beades v Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 March 2018
• Neutral Citation: [2018] IECA 64
• Court: Court of Appeal (Ireland)
• Docket Number: [Appeal No. 2016:339],[C.A. No. 339 of 2016]
• Date: 14 March 2018

[2018] IECA 64

THE COURT OF APPEAL

Dunne J.

DUNNE J.

MAHON J.

HEDIGAN J.

[Appeal No. 2016:339]

BETWEEN:

JERRY BEADES

PLAINTIFF/APPELLANT

AND

IRELAND, THE ATTORNEY GENERAL, JUDICIAL APPOINTMENTS ADVISORY BOARD

AND

THE MINISTER FOR JUSTICE AND EQUALITY

DEFENDANTS/RESPONDENTS

Abuse of process – Cause of action – Frivolous or vexatious proceedings – Appellant seeking to have the nomination of Kelly J as President of the High Court quashed – Whether proceedings constituted an abuse of process

Facts: The appellant, Mr Beades, sought to have the nomination of Kelly J as President of the High Court quashed and sought a declaration that Kelly J had not been validly appointed and "is not the President of the High Court not being a fit and proper person". On the 3rd June, 2016, the High Court (Haughton J) held that the proceedings should be dismissed pursuant to Order 19, rule 28 of the Rules of the Superior Courts or alternatively pursuant to the inherent jurisdiction of the Court striking out the plenary summons and the statement of claim on the grounds that they disclosed no reasonable cause of action and/or were frivolous or vexatious and on the grounds that the proceedings were bound to fail and constituted an abuse of process. The appellant appealed to the Court of Appeal from that decision on the grounds that: (a) the trial judge failed to weigh, evaluate and consider the application of the right to fair procedures under Article 40.3 of the Constitution in the context of cases heard and determined by Kelly J; (b) the judge erred in relation to his conclusions as to an improper purpose in pursuing the litigation and relying on that conclusion to strike out the proceedings as an abuse of process; (c) the judge erred in law in not accepting the submissions of Mr Beades that the issue of cabinet confidentiality can be pierced in the interests of the administration of justice; (d) the judge failed to adhere to a constitutional right to legal representation in not appointing a lawyer to represent Mr Beades; (e) the judge compromised the administration of justice by not allowing and refusing to allow documents to be read out in open court; (f) the judge erred in concluding that Kelly J was a suitable candidate to be President of the High Court; (g) Kelly J was an unsuitable candidate to be a judge; (h) the procedures of the Court and Court Officers Act 1995 were not followed in that the position was not advertised and there was no consideration of the appointment of Kelly J by the Judicial Appointments Advisory Board; (i) Kelly J was unsuitable to be President of the High Court by reason of his "intervention and promotion of a settlement for the church in child abuse matters"; and (j) the Government did not follow principles of "customary international law" and in particular the Bangalore Principles in the appointment of Kelly J as President of the High Court'.

Held by Dunne J that the decision of the Government to nominate Kelly J as President of the High Court was an executive decision of the Government and as such was not one that could be interfered with by the Courts having regard to the separation of powers. Dunne J held that Mr Beades would face an insuperable problem in making out such a claim having regard to the Constitutional protection given to cabinet confidentiality. Dunne J held that the declaration that Kelly J had not been validly appointed and "is not the President of the High Court not being a fit and proper person" could not be granted by the Courts; once appointed, a judge cannot be removed from office save by resolution of the Houses of the Oireachtas. Accordingly, given that the Courts have no role to play in the removal of a judge from office, Dunne J held that the relief sought by Mr Beades could never be granted by the Courts.

Dunne J held that the trial judge could not have come to any other conclusion on the application before him. Dunne J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Dunne delivered the 14th day of March 2018.

1 This is an appeal from a decision of the High Court (Haughton J.) of the 3rd June, 2016, in which he concluded that the proceedings herein should be dismissed pursuant to Order 19, rule 28 of the Rules of the Superior Courts (hereinafter referred to as the RSC) or alternatively pursuant to the inherent jurisdiction of the Court striking out the plenary summons and the statement of claim on the grounds that they disclose no reasonable cause of action and/or are frivolous or vexatious and on the grounds that the proceedings are bound to fail and constitute an abuse of process.

Jurisdiction to strike out

2 The courts have the power, pursuant to Order 19, rule 28 of the RSC and their inherent jurisdiction, to strike out proceedings where they can be shown to be unsustainable, frivolous or vexatious.

3 Order 19, rule 28 of the RSC provides:

'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 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.'

4 In addition to the power of the Court to stay proceedings on the basis that they are frivolous or vexatious, the Court has an inherent jurisdiction to make an order to similar effect.

5 The difference between the terms frivolous and vexatious is somewhat nuanced. The Concise Oxford English Dictionary, 10th Ed., (Oxford, 1999) defines the word frivolous as:

'Not having any serious purpose or value ... carefree and superficial.'

6 It defines vexatious as:

'(1) Causing annoyance or worry.

(2) Law (of an action) Brought without sufficient grounds for winning, purely to cause annoyance to the defendant.'

7 In Farley v. Ireland (Unreported, Supreme Court, 1st May, 1997), Barron J. stated:

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

8 The fact that the Court has an inherent jurisdiction to make a similar order to that provided for in Order 19, rule 28 of the RSC is specifically referred to by Costello J. in Barry v. Buckley [1981] I.R. 306. The subject matter of that case was the defendant's application to stay the plaintiff's action and vacate a lis pendens in relation to a dispute arising from a claimed offer by the plaintiff to purchase land from the defendant. In the course of his judgment, Costello J. stated:

'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 pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie's Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court 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; per Buckley L.J. in Goodson v. Grierson at p. 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff's case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant....'

9 The remarks of Costello J. in Barry were, in effect, adopted and followed by the Supreme Court in Lopes v. The Minister for Justice, Equality and Law Reform [2014] 2 I.R. 301. It is useful at this juncture to quote a number of extracts from the judgment of Clarke J. (as he then was) in Lopes, namely:

'Against that background, it is important to distinguish between the jurisdiction which arises under O. 19, r. 28 of the RSC and the inherent jurisdiction often invoked. The inherent jurisdiction can be traced back to the decision of Costello J. in Barry v. Buckley [1981] I.R. 306. However, that jurisdiction needs to be carefully distinguished from the jurisdiction which arises under the RSC, precisely because it would be inappropriate to invoke the inherent jurisdiction of the court in circumstances governed by the RSC.'

10 And:

'17.... An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v. Buckley [1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. 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.

18. It is important to keep that distinction in mind. It is also important to note the many cases in which it has...