Bushe v T.P.E.M. Ltd t/a Pulse Logistics

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date09 February 2018
Neutral Citation[2018] IEHC 177
Docket Number[2017 No. 6989 P.]
CourtHigh Court
Date09 February 2018

[2018] IEHC 177

THE HIGH COURT

Costello J.

[2017 No. 6989 P.]

BETWEEN
JASON BUSHE
PLAINTIFF
AND
T.P.E.M. LIMITED TRADING AS PULSE LOGISTICS, TOTAL PRODUCE INTERNATIONAL HOLDINGS LIMITED, TOTAL PRODUCE PLC.

AND

MASTERLINK LOGISTICS LIMITED
DEFENDANTS

Employment – Practice & Procedure – O. 19, r. 28 of the Rules of the Superior Courts – Costs order – Dismissal of the proceedings – No cause of action – Abuse of process – Inherent jurisdiction – Interlocutory injunctions – Withdrawal of motion.

Facts: The second and third defendants sought an order to dismiss the proceedings filed against them by the plaintiff, pursuant to o. 19, r. 28 of the Rules of the Superior Courts or under the inherent jurisdiction of the Court. The defendants also sought an order for costs against the plaintiff. The plaintiff sought interlocutory reliefs against the defendants but later on withdrew his application without obtaining an order, a compromise or an undertaking from any of the defendants. The plaintiff then sought an order for costs against the defendants. The second and third defendants contended that the claims made by the plaintiff had no possibility of success and were an abuse of process as it did not disclose the cause of action and were bound to fail.

Ms. Justice Costello granted an order for the costs in favour of the second and third defendants in relation to the plaintiff's motion for seeking interlocutory injunctions while refusing the application for the costs of the plaintiff. The Court held that the plaintiff had not achieved any result from the motion for interlocutory relief as he himself withdrew the application and to that extent it could be considered that it was not necessary for him to bring the motion to achieve the result. The Court also refused to dismiss the proceedings sought by the defendants as the pleadings had disclosed two causes of action against the second and third defendants.

JUDGMENT of Ms. Justice Costello delivered on 9th day of February 2018
Introduction
1

This is my decision on two applications in these proceedings. The first is an application by the second and third named defendants to dismiss the proceedings against them and the second is the application for costs by all of the parties arising from the plaintiff's motion to seek injunctive reliefs.

The motion to dismiss the claim against the second and third named defendants
2

The plaintiff commenced these proceedings by plenary summons dated the 28th July, 2017 and delivered a statement of claim on the 5th October, 2017. The statement of claim was amended on the 2nd November, 2017. The second and third named defendants issued a motion seeking to dismiss the proceedings against them on the grounds that they disclosed no cause of action and are bound to fail. The motion was brought pursuant to O. 19, r. 28 of the Rules of the Superior Courts and in the alternative, pursuant to the inherent jurisdiction of the court on the grounds that the claims have no possibility of success and are an abuse of process.

3

Before considering the specific claim in these proceedings it is useful to set out the relevant principles applicable to applications of this kind. Two recent cases provided useful summaries of the jurisprudence in this area. In Irish Bank Resolution Corporation Ltd. v. Purcell [2014] IEHC 525 at para. 83 Cregan J. identified the following ten principles:-

'1. The Court has jurisdiction pursuant to Order 19 Rule 28 and also pursuant to its inherent jurisdiction to strike out proceedings if they are bound to fail.

2. In considering an application to strike out proceedings pursuant to its inherent jurisdiction the Court is not limited to considering the pleadings of the parties but is free to consider evidence on affidavit relating to the issues in the case (per Costello J. in Barry v. Buckley [1981] IR 306).

3. This jurisdiction to strike out proceedings is one to be 'exercised sparingly and only in clear cases'. (See Costello J. in Barry v. Buckley [1981] IR 306).

4. Moreover as McCarthy J. stated in Sun Fat Chan v. Osseous Ltd [1992] 1 IR 425 'Generally the High Court should be slow to entertain an application of this kind'.

5. In addition as was stated by Keane J. in Lac Minerals v. Chevron Corporation [1995] 1 I.L.R.M. 161 (High Court, 6th August, 1990) (and quoted with approval by the Supreme Court) in Supermacs Ireland Ltd v. Katesan (Naas) Ltd [2000] 4 I.R. 273 "a judge in considering an application to strike out or dismiss a claim must be confident that the plaintiff's claim cannot succeed no matter what might arise on discovery or at the trial of the action."

6. If the pleadings can be amended in such a manner as to save the action then the proceedings should not be dismissed (see McCarthy J. in Sun Fat Chan v. Osseous Ltd).

7. The Court can only exercise a jurisdiction to strike out a claim on the basis that 'on admitted facts it cannot succeed' (per McCarthy J. in Sun Fat Chan v. Osseous Ltd).

8. The Court in considering whether to strike out a claim 'must treat the plaintiff's claim at its high water mark' (per Clarke J. in McCourt v. Tiernan [2005] IEHC 268.

9. The burden of proof lies on the defendant to establish that the plaintiff's claim is bound to fail. (See Salthill Properties Ltd v. Royal Bank of Scotland [2009] IEHC 207)

10. The Court should not require a plaintiff to be in a position to show a prima facie case, merely a stateable case, in an application to strike out. (See Clarke J. in Salthill Properties Ltd v. Royal Bank of Scotland.)'

4

In Hosey v. Ulster Bank Ltd. and others [2017] IECA 257 Irvine J. delivered the decision of the Court of Appeal and at paras. 35 to 40 she identified the principles relevant to the court's inherent jurisdiction to dismiss a claim on the basis that it is bound to fail.

'35. The court's inherent jurisdiction to dismiss a claim on the ground that it is bound to fail is a jurisdiction which is only to be 'exercised sparingly and only in clear cases' as was stated by Costello J. in Barry v. Buckley [1981] 1 I.R. 306.

36. In Lac Minerals Ltd. v. Chevron Mineral Corporation [1995] 1 I.L.R.M.161, Keane J. stated that before a judge accedes to an application to dismiss a claim on the ground that it is bound to fail, he or she must be confident that no matter what may arise on discovery or at the trial of the action that the claim cannot succeed.

37. Further, if the proceedings can be saved by an amendment to the pleadings then once again the action should not be dismissed: See for example Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425.

"38. In some of the more recent decisions, such as those in Ruby Property Co. Ltd. v. Kilty [1999] IEHC 50 and Jodifern Ltd. v. Fitzgerald [2003] I.R. 321, the court has made clear that a defendant can only succeed on this type of application if, on the basis of admitting to all of the facts as asserted by a plaintiff, they can establish that the action cannot succeed.

39. While this jurisdiction is one which is to be sparingly exercised, there are of course cases w[h]ere the legal rights and obligations of the parties may be governed by documents and in such cases the court may examine such documents to consider whether the plaintiff's claim is, as alleged, bound to fail. However, even in those cases, the court must ask itself the question as to whether there is nonetheless a risk that outside of that documentary record there could realistically be evidence which might bear upon the rights and obligations as identified in the documents.

40. Finally, of some particular relevance in the context of the present proceedings is the fact that a claim may appear to be innovative or weak is no basis for dismissing the claim as was observed by Charleton J. in Millstream Recycling Limited v. Tierney [2010] IEHC 55.'

The plaintiff's case against the second and third named defendants
5

The plaintiff's proceedings concern his employment by the first named defendant and the vast majority of the case...

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