Cunningham v Galvin and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 12 June 2024
• Neutral Citation: [2024] IEHC 372
• Court: High Court
• Docket Number: Record No. 2019/8798P

Between/

Ted Cunningham

Plaintiff

and

Barry Galvin, Anthony Thomas Quilter, The Commissioner of An Garda Síochána, The Director of Public Prosecutions, The Minister for Justice and Equality, Ireland and The Attorney General

Defendants

[2024] IEHC 372

Record No. 2019/8798P

THE HIGH COURT

JUDGMENT ofMr. Justice Conleth Bradleydelivered on the 12 ^th day of June 2024

INTRODUCTION

Preliminary

1 In this application, the Defendants (collectively referred to as “the State Defendants”) seek to bring the Plaintiff's action to an end on the following alternative basis:

• (a) the Plaintiff's claim is res judicata and/or an abuse of process and should be struck out;

• (b) the proceedings are an abuse of process arising from the rule in Henderson v Henderson[1843] 3 Hare 100 and should be dismissed;

• (c) the Plaintiff's claim fails to disclose a cause of action and is frivolous and vexatious and/or is bound to fail and should therefore be dismissed pursuant to Order 19, rule 28 of the Rules of the Superior Courts 1986, as amended (“RSC 1986”) and/or the inherent jurisdiction of the High Court.

Background

2 On 27 ^th March 2009, the Plaintiff was convicted of ten counts of money laundering. The Plaintiff appealed his conviction to the Court of Criminal Appeal which delivered judgment on 11 ^th May 2012. Arising from the decision of the Supreme Court in Damache v Director of Public Prosecutions[2012] IESC 11; [2012] 2 I.R. 266, section 29 of the Offences against the State Act 1939 had been held to be unconstitutional because it permitted a senior Garda officer, who was not independent of the process, to grant a warrant for the search of private premises. When applied to the Plaintiff's circumstances, the Damache decision resulted in the quashing of the ten convictions, as stated, on 11 ^th May 2012 and the Court of Appeal ordered a retrial on nine of the counts (excluding Count 10 which was a charge of alleged money laundering in respect of a sum of sterling cash to the value of GBP£3,010,380).

3 At his retrial, the Plaintiff, who was legally represented, pleaded guilty to two charges on the Indictment preferred against him, which in summary inter alia stated that on about 15 ^th January 2005, at Tullamore, County Offaly, the Plaintiff was reckless as to whether sterling cash to the value of £100,040 represented the proceeds of criminal conduct, namely a robbery at the Northern Bank Cash Centre, Donegall Square West, Belfast on 20 ^th December 2004 (the “Northern Bank Robbery”) and transferring same to a named individual, contrary to section 31(1)(c) of the Criminal Justice Act 1994 (as amended) (“the 1994 Act”) and that on or about 7 ^th February 2005 at Ballincollig, County Cork, the Plaintiff was reckless as to whether sterling cash to the value of £175,360 represented the proceeds of the Northern Bank Robbery and transferring same to a named individual, contrary to section 31(1)(c) of the 1994 Act.

4 On 27 ^th February 2014, the Plaintiff was convicted and sentenced in relation to these two offences. The Plaintiff received a sentence of five years imprisonment and the court took into consideration time already served and the balance was suspended on the Plaintiff's undertaking to desist from being a director or employee in any financial business for a period of five years and, in addition, the Court ordered “[u] nder section 61 of the Criminal Justice Act, 1994 for the forfeiture of the sum of £2,985,680.00 & €45,146.00 seized”. No objection was made by, or on behalf of the Plaintiff, to that Forfeiture Order.

5 Neither the conviction nor the Forfeiture Order were appealed by the Plaintiff.

6 However, now in these proceedings, the Plaintiff pleads and alleges inter alia at paragraph 11 of this Statement of Claim that “ in advance of the sentencing of the Plaintiff, and in particular that part of the sentence which ordered the confiscation of monies seized from his home, the Defendants, individually or collectively, made false statements and misrepresentations and/or omitted to provide the Plaintiff or the Cork Circuit Criminal Court with exculpatory material evidence within the knowledge of the Defendants, and in violation of the Plaintiff's right to fair hearing”.

7 In this action, the Plaintiff alleges that the monies seized from his property in Cork were not the proceeds of the Northern Bank Robbery and that the seizure of the money was allegedly unlawful.

8 Seamus Clarke SC, together with Michael Binchy BL, appeared for the State Defendants. Eamonn Dornan BL appeared for the Plaintiff. John P. Gallagher BL appeared for the Director of Public Prosecutions (“DPP”). In addition to hearing oral submissions from Mr. Clarke SC, I received written submissions from Mr. Clarke SC and Mr. Binchy BL for the State Defendants. In addition to hearing oral submissions from Mr. Dornan BL, I also received written submissions from Mr. McGrory SC KC and Eamonn Dornan BL for the Plaintiff.

ABUSE OF PROCESS: LEGAL PRINCIPLES

Abuse of process & issue estoppel

9 In Thoday v Thoday[1964] 2 WLR 371, Diplock L.J., at page 384, explored the policy basis behind the doctrine of res judicata in the context of its two limbs, i.e., cause of action estoppel and issue estoppel, as reflected in the Latin maxim “ nemo debet bis vexari pro una et eadem cause” (“ nobody should be vexed/harassed for the same act twice”).

10 In relation to ‘issue estoppel’, he observed as follows, at pages 384–385:

“ The second species, which I will call “issue estoppel,” is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”

11 The decision in Thoday v Thoday and the leading authorities in this area were also addressed by this court (Dignam J.) in Curran & O'Donnell v Ulster Bank Ireland DAC[2023] IEHC 513, where at paragraphs 90 and 91 of his judgment, Dignam J. referred to the ingredients of issue estoppel as defined by McDonald J. in George v AVA Trade (EU) Ltd[2019] IEHC 187, at paragraph 59, as follows: “[t] he ingredients of estoppel in this context are well established. In this case, what must be determined is that the [prior judgment] was:- (a) A judgment given by a court of competent jurisdiction; (b) A final decision on the merits; (c) The judgment must have determined a question which is now raised in these proceedings;(d) The parties to this litigation must be the same as the parties to the [previous] proceedings”, and by Simons J. in McCool Controls and Engineering Ltd v Honeywell Control Systems Ltd[2019] IEHC 695, at paragraph 33, that the key criteria for issue estoppel may be summarised as: “ (i) there must be a judgment by a court of competent jurisdiction which involves (ii) a final decision on the merits; (iii) the earlier judgment must have (necessarily) determined the same issue as arises in the second set of proceedings; and (iv) the parties to the two proceedings must be the same or their privies”.

12 In Morrissey v IBRC[2015] IEHC 200, Costello J. at paragraph 5 of her judgment observed that “[i] t is a fundamental principle of law that a party should not be entitled to re-litigate matters or raise issues which have already been determined by a final judgment of a court of competent jurisdiction between the same parties and their privies. This is known as the principle of res judicata. But beyond the strict limitations of res judicata the courts have long recognised that there may be abuse of process outside of the relatively confined limitations of the rule and the courts have always been prepared to balance the rights of parties to have their cases heard and determined by the courts with the rights of the opposing parties to fair procedures in the conduct of litigation and, where necessary, to strike out proceedings if they amount to an abuse of process. In addition to the private rights of litigants, there is a public policy interest in ensuring finality of litigation and preventing vexatious litigants from subjecting the same parties to multiple law suits on the same issue.”

13 At paragraph 5 of her judgment, Costello J. referenced the decision of Murray C.J. in Re Vantive Holdings[2010] 2 I.R. 118, who in his judgment (at pages 124–125) said as follows:

“ [20] Citizens have the right of access to the courts so that their entitlements, rights and obligations may be determined in accordance with due process. Due process means a right to a fair and complete hearing of the issues of law and fact in any proceedings. The courts have always had an inherent jurisdiction to stay or dismiss proceedings which abuse the due process of the administration of justice where to do otherwise would seriously undermine its effectiveness or integrity. In addition under the rules of court the courts have, in civil proceedings, the power to dismiss proceedings on the grounds that they are “frivolous” or “vexatious.” Indeed abuse of process may take...