Carrickfin Trust Ltd v Forker and Others

Judgment Date25 January 2013
Neutral Citation[2013] IEHC 16
Docket NumberRECORD NUMBER: E/21 CAT/2011
CourtHigh Court
Date25 January 2013

[2013] IEHC 16


Carrickfin Trust Ltd v Forker & Togail Dhun na nGall Teoranta





HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313 1843-60 AER 378

VANTIVE HOLDINGS & ORS, IN RE 2010 2 IR 118 2009 57 14518 2009 IESC 69


MCCAULEY v MCDERMOT 1997 2 ILRM 486 1997/10/3253




Res judicata

Abuse of process - Settlement of proceedings - Estoppel - Real property - Registration of title - Whether settlement of previous proceedings amounting to final determination of issues - Whether plaintiff estopped by conduct - Whether strike out of "balance of proceedings" rendering matter res judicata - Sweeney v Bus Átha Cliath [2004] IEHC 70, [2004] IESC 87, [2004] 1 IR 576 applied - Henderson v Henderson (1843) 2 Hare 100; Bradshaw v McMullen [1920] 2 IR 412; Trainor v McKee [1988] NI 556; McCauley v McDermot [1997] 2 ILRM 486, and In re Vantive Holdings [2009] IESC 69, [2010] 2 IR 188 considered - Appeal allowed; application to strike out proceedings refused (2011/E/21CAT - Peart J - 25/1/2013) [2013] IEHC 16

Carrickfin Trust Limited v Forker

Facts: The plaintiffs had sought declarations in the High Court that they were entitled to sole ownership of an area of specified land that had been highlighted in a map ('Map 3') submitted to the court. They also sought a similar declaration in respect of an area of land to the east of that contained in Map 3 known as 'Plot 134'. A settlement was reached on the day of hearing asking the court to make orders to the effect that the plaintiff would be registered as the sole owner of the lands of Map 3 and that the balance of proceedings would be struck out.

The plaintiff subsequently initiated proceedings in the Circuit Court in respect of Plot 134. On the 28 th July 2011, the defendants made a successful application for the proceedings to be struck out as an abuse of process on the basis that the matter had already been determined in the High Court. The plaintiffs appealed that decision contending that when they negotiated the original settlement, they believed they were only determining the issue of the lands of Map 3 only and intended to pursue the issue of Plot 134 subsequently. They averred that the order made striking out the balance of proceedings did not preclude them from taking that course of action which they felt would be more expeditious and cost effective. They finally submitted that because the matter had not been adjudicated upon by the High Court, the principle of res judicata could not apply as the issue of Plot 134 had not been finally determined.

The defendant claimed that the intention of the settlement was to determine all matters before the court, which was reflected in the orders issued by the court, and so the plaintiff could not then initiate proceedings in relation to them.

Held by Peart J that it was clear that at no point during negotiations did the plaintiffs intimate to the defendants that they intended to pursue the matter of Plot 134 in the Circuit Court. However, the principle of res judicata could not apply to the matter of Plot 134 because it was a strict requisite that the matter had to be adjudicated upon in the court before an attempt to have the matter re-initiated could be deemed to be an abuse of process. The fact that there was a striking out order for that matter fell outside the principle and the order striking out the plaintiffs" Circuit Court proceedings had to be set aside.

However, there was the possibility that the issuing of fresh proceedings could be barred by the principle of estoppel by consent. The plaintiffs should have informed the defendants of their intentions as to Plot 134 at the time of negotiations and by not doing so, it was entirely possible but that the defendants believed that the settlement applied to all matters. The matter would proceed in the Circuit Court where the defendants could advance their estoppel argument.

Appeal allowed. Order striking out proceedings set aside.


On the 28 th July 2011 His Honour Judge O'Hagan, on the application of the defendants in these proceedings, made an order striking out the plaintiffs claims in these proceedings as an abuse of process.


The basis for the abuse of process is that the issues between the parties the subject of these proceedings have already been determined between the parties in certain High Court proceedings (Record Number 2001 No. 14570P), but in the sense that in the latter proceedings a settlement was reached on the day that the case was listed for hearing, and the Court (Mr Justice Murphy) was asked to make (1) an order by consent directing that the plaintiff be registered as sole owner of the lands highlighted and marked pink on a map attached to that order (Map 3) - that map having been signed by the solicitors for each of the parties - and (2) an order "striking out the balance of the proceedings". The order as drawn provides for these two matters, as well as for a no costs order on the undertaking of one of the defendants to pay €4000 towards the plaintiff's costs which was also part of the settlement arrived at. A recital in the Court's order states as follows:

"And it appearing that a settlement has been reached herein The parties agree to compromise the matters at issue between them as follows ...".

Thereafter the orders to which I have referred are provided for in the curial part of the order.


I should state that the agreed terms of settlement were not presented to the Court in the usual form, namely a document containing the signatures of the parties, duly witnessed also by the parties' solicitors. No such document appears to have been drawn up and signed. There has been exhibited a copy of a hand-written note of the terms of the order proposed and which is reflected in the Court's order as drawn. I understand that this may have been a note of the proposed order prepared by junior counsel and which was used by Counsel for the defendants, almost as a speaking note, when informing the Court of the fact that the case was settled. That is the suggested provenance of this note as understood by Mr Gillespie the solicitor appearing for the plaintiff on this application and who was involved in the negotiations leading to the settlement of the proceedings before the Court on the 4 th November 2010. However, counsel for the defendants is adamant that it represents faithfully the agreed settlement, and that the order reflects that settlement, including the fact that "the parties agree to compromise the matters at issue between them" as appears both in that document and in the perfected order.


In those High Court proceedings the plaintiffs had sought declarations not only that they are entitled to be registered as sole owners of the lands on Map 3, but also of other lands to the east of the lands on Map 3, referred to as Plot 134. The plaintiff's solicitor has stated on affidavit that it was their understanding of the settlement of the High Court proceedings, and indeed his own, and that they were so advised at the time of the settlement by their Senior Counsel, that the settlement reached on the 4 th November 2010 did not preclude them from seeking in other proceedings the remainder of the reliefs claimed in the High Court proceedings, including a declaration that they are entitled to be registered as sole owners of Plot 134. They say that any order striking out the balance of the proceedings is not an order which precludes them from further pursuit in other proceedings of the balance of their claims and that the settlement was never intended to exclude such further proceedings. They have said that the reason behind leaving over the balance of the proceedings to new Circuit Court proceedings was that the rateable valuation of the remaining lands in dispute was within the Circuit Court jurisdiction, and that it was considered preferable to conduct that dispute more cheaply and expeditiously in the Circuit Court. They submit that there can be no question of the new proceedings being an abuse of process on the basis of res judicata since there was no adjudication on the merits by Mr Justice Murphy, and in an event the parties to the new proceedings are not identical to those in the High Court.


The defendants contend that the High Court order says what is says and that it is clear that all issues between the parties had been compromised on the basis that the plaintiff would be registered as sole owners in relation to the Map 3 lands, and that thereafter it was not open to the plaintiff to commence fresh proceedings in relation to any other lands which were the subject of the earlier proceedings.


In fact, on the very next day following the settlement by which they were declared entitled to be registered in relation to the lands highlighted on Map 3, the plaintiffs commenced proceedings in the Circuit Court by way of Equity Civil Bill seeking to be declared the sole owners of Plot 134, and other related reliefs.


The plaintiff relies upon the fact that, because the balance of the proceedings were struck out by consent, there has been no judicial determination in relation to the Plot 134 lands and any other issues in the proceedings, and that accordingly the doctrine of res judicata cannot apply. For that principle to apply it is well accepted on good authority that one of the requirements is that there has been in proceedings between the same parties a final adjudication upon the issues raised in the new proceedings. Clearly there...

To continue reading

Request your trial
2 cases
  • Harahill v Kane
    • Ireland
    • Court of Appeal (Ireland)
    • 23 January 2023 clearly required in the interest of justice.” 34 Commenting on that in Lough Swilly Shellfish Growers Co Op Society Limited v. Bradley [2013] IEHC 16, O'Donnell J. at page 245 in an oft quoted passage stated: “There is a spectrum of cases in which a new issue is sought to be argued on ap......
  • Y (Z) [Pakistan] v Refugee Appeals Tribunal
    • Ireland
    • High Court
    • 2 October 2014 in making this finding. 48 48. The applicant referred to the decision of Mac Eochaidh J. in F.T. v. Refugee Appeals Tribunal & Anor [2013] IEHC 16, where the issue was dealt with as follows:- "I accept that the applicant did not claim that the State was the first safe country he entered......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT