O'Brien v Wohlman
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 21 May 2019 |
| Neutral Citation | [2019] IEHC 334 |
| Docket Number | [2015 2829 P] |
| Court | High Court |
| Date | 21 May 2019 |
[2019] IEHC 334
THE HIGH COURT
Murphy Deirdre J.
[2015 2829 P]
Damages – Assault and battery – Reasonable cause of action – Defendants seeking an order striking out the plaintiff’s claim for damages for assault and battery – Whether the plaintiff’s claim disclosed no reasonable cause of action
Facts: The defendants applied to the High Court for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts, or in the alternative pursuant to the inherent jurisdiction of the court, striking out the claim of the plaintiff, Mr O’Brien, for damages for assault and battery on the basis that it was unsustainable, frivolous and/or vexatious. Further or in the alternative, the defendants claimed that the plaintiff’s claim disclosed no reasonable cause of action, was an abuse of process and was bound to fail.
Held by Murphy J that it could not be said that the allegation of vicarious liability against the receiver was a claim that in the instant case, was frivolous and/or vexatious, and/or an abuse of the process of the court. Murphy J held that while the claim at first glance did appear to be particularly unmeritorious, the court would not dismiss the plaintiff’s claim against the twentieth defendant, Mr Coyle.
Murphy J held that she would dismiss the claims against all other defendants named by the plaintiff, on the grounds that the claim for assault against each of them was unstateable and was bound to fail.
Claims dismissed in part.
This is the defendants” application for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts, or in the alternative pursuant to the inherent jurisdiction of the court, striking out the plaintiff's claim for damages for assault and battery on the basis that it is unsustainable, frivolous and /or vexatious. Further or in the alternative, the defendants claim that the plaintiff's claim discloses no reasonable cause of action, is an abuse of process and is bound to fail. This application is grounded on the affidavit of Alan Sullivan, solicitor for the defendants.
The decision in this case should be read in conjunction with the court's earlier decision delivered on 4th March, 2016, on applications brought on behalf of Simon Coyle, a receiver appointed by Investec Bank plc, seeking various interlocutory reliefs relating to possession of mortgaged properties at Poleberry, Co. Waterford, and Duncormick, Co. Wexford. Both of those properties had been mortgaged by this plaintiff to Investec Bank (UK) Limited (Irish Branch). On the same date, the court gave its decision on applications made on behalf of numerous defendants, broadly connected to Investec Bank plc and Mazars Ireland, striking out two sets of proceedings issued by the plaintiff, Philip O'Brien, either pursuant to O. 19, r. 28 of the Rules of the Superior Courts, or on the alternative basis of the court's inherent jurisdiction.
At the root of all of the applications before the court on that occasion were two mortgages granted by Philip O'Brien, the plaintiff, to Investec Bank (UK) Limited (Irish Branch), over a mixed commercial and residential property at 84 Poleberry in Co. Waterford, and a mortgage of freehold lands in Duncormick, Co. Wexford. Following that hearing, the court granted certain interlocutory relief to Simon Coyle, the receiver of the properties, and dismissed two out of three plenary proceedings brought by Philip O'Brien against a multiplicity of defendants, arising out of the receivership. In these proceedings, the plaintiff, Mr O'Brien, claims damages for an alleged assault and battery, arising from an incident at the Poleberry property on 26th April, 2014.
The incident on the evidence, arose in the following circumstances. Mr Simon Coyle, the twentieth named defendant, had been appointed receiver by Investec Bank plc of the plaintiff's property at 84 Poleberry, on 16th February, 2011. Following the appointment of Mr Coyle as receiver the plaintiff, Philip O'Brien, ceded possession of the property to him. In early July, 2012, the receiver retained a company known as Book a Room The Accommodation Company Limited, which is a company providing agency and management services in connection with the provision of rented accommodation, particularly in the Waterford area. That company undertook to rent and manage the property on behalf of the receiver. Tenants were secured for the residential portion of the property, and the income therefrom was remitted to the receiver.
More than three years after he had ceded possession of the Poleberry property to the receiver, the plaintiff began to reassert ownership of the property, by demanding that the tenants pay rent to him rather than to the receiver. The uncontroverted evidence before the court was that the tenants who had an 11 year old child, felt intimidated by Mr O'Brien's behaviour and in fact, moved out of the property within a matter of weeks. Security was arranged, and locks were changed. The evidence is that the Poleberry property was let to a Mr Durojaiye on a caretaker arrangement, at a significantly reduced rent of €200 per month. The tenancy was arranged by Book a Room The Accommodation Company Limited, at the request of the receiver. The caretaker tenant, Mr Durojaiye, was an employee of Crystal Contract Services, a security company regularly used by Book a Room The Accommodation Company Limited, and the caretaker tenant was known to the directors of Book a Room The Accommodation Company Limited. The intention in granting a caretaker tenancy to Mr Durojaiye, was to prevent further trespass on the property by the plaintiff, Mr O” Brien.
There were incidents at the property on the 24th and 25th April, 2014, involving Mr O'Brien and the caretaker tenant, resulting in the gardaí being called. On 26th April, 2014, on his own admission, Mr O'Brien broke down the door of the residential unit to gain entry to the property, at a time when he knew there was a person in occupation. Mr O'Brien alleges that in the course of resisting his incursion on the property, he was assaulted by the tenant, Mr Durojaiye. The plaintiff was subsequently arrested and charged before the District Court. It appears that the charges were dismissed on the grounds that the District Court Judge was not satisfied as to the ownership of the Poleberry property. The receiver has averred that he was not asked to give evidence in that prosecution, but that he did give the gardaí copies of his deed of appointment as receiver.
On 13th April, 2015, the plaintiff, Mr O'Brien, issued these proceedings in which he claims damages for assault against twenty-two defendants, including senior executives of Investec Bank plc and each of the partners of Mazars. Mr O'Brien seeks:-
‘An order in the amount of €6,500,000,00 Six Million Five Hundred Thousand Euro for assault and damages resulting in ongoing Injuries, Mental Stress and Post Traumatic Stress Disorder as a consequence of assault and battery on the plaintiff by the defendants and all of them singularly, collectively and vicariously on the plaintiff by defendants at 84 Poleberry, Waterford in the county of Waterford’.
In his proceedings, the plaintiff has not sued his alleged assailant, the tenant/security man who was in occupation of the property, nor has he sued Book a Room The Accommodation Company Limited, nor has he sued Crystal Contract Services with whom the tenant worked as a security man. In fact, at the commencement of the multiple applications heard by the court in February, 2016, and dealt with by the court in its judgment of 4th March, 2016, this plaintiff specifically conceded that all of his claims against Book a Room The Accommodation Company Limited and its directors, could be struck out on the grounds that they were frivolous and/or vexatious.
These proceedings are being maintained against twenty-two defendants, all of whom appear to be connected to either Investec Bank plc or Mazars (the firm in which Mr Coyle the receiver is a partner), and none of whom is the alleged perpetrator of the alleged assault. It is clear that none of the defendants were anywhere near 84 Poleberry, Co. Waterford at the time of the alleged assault, so that unless the plaintiff can establish that somehow each of the twenty-two named defendants is vicariously liable for the alleged assault on him by the tenant, Mr Durojaiye, then the plaintiff's claim is bound to fail, is an abuse of the process of the court, and should be dismissed.
It appears on the evidence, that the alleged perpetrator was an employee of a security company who had been placed in the property, at the request of the receiver, because of Mr O'Brien's alleged interferences with tenants and with the property. The tenant's presence on the property was for the specific purpose of preventing trespass. As the only potential basis upon which any of the defendants could possibly be found liable to the plaintiff was on the basis of vicarious liability, the court gave the parties an opportunity to address it further on that issue.
The plaintiff's submissions singularly fail to engage with any of the evidence in the case and solely advance a theoretical basis on which the defendants could be found vicariously liable to the plaintiff. The theory essentially depends on Mr O'Brien being successful in having the appointment of Mr Coyle as receiver being declared invalid....
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