(D) K v (A) K

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Costello
Judgment Date01 January 1993
Neutral Citation1992 WJSC-HC 3761
Date01 January 1993
K (D) v. K (A)

BETWEEN:

D. K.
Plaintiff

and

A. K. AND OTHERS
Defendants

1992 WJSC-HC 3761

No. 5306P/1990

THE HIGH COURT

Synopsis:

ACTION

Dismissal

High Court - Jurisdiction - Inherent power - Exercise - Refusal - Libel - Medical reports - Rules of the Superior Courts, 1986, order 19, rr. 27, 28 - (1990/5306 P - Costello J. - 3/10/92)

|K. v. K.|

HIGH COURT

Jurisdiction

Action - Dismissal - Inherent power - Exercise - Refusal - Libel - Medical reports - (1990/5306 P - Costello J. - 3/10/92)

|K. v. K.|

PRACTICE

Action

Dismissal - High Court - Inherent power - Exercise - Refusal - Libel - Medical reports - (1990/5306 P - Costello J. - 3/10/92)

|K. v. K.|

Citations:

RSC O.19 r27

RSC O.19 r28

BARRY V BUCKLEY 1981 IR 306

SUN V OSSEOUS UNREP SUPREME 30.7.91 1991/10/2412

BOTTOMLEY V BROUGHAN 1908 1 KB 584

LAW V LLEWELLYN 1906 1 KB 487

WATSON V MCEWAN 1905 AC 480

RSC O.19

1

Judgment of Mr. Justice CostelloDelivered the 2nd day of October 1992

2

The plaintiff and his wife have one child, a boy born on the 19 June 1978. They separated in December 1981 and have since been living apart. Custody of their son was given to the plaintiff's wife but access on a regular basis was granted by Court order to the plaintiff. In May of 1987 the plaintiff's wife made an allegation against him of having committed one of the most heinous crimes imaginable, namely, that he had sexually abused his own son, then nine years old. These proceedings arise out of that allegation. In the interests of the young boy and to preserve as far as is possible his anonymity I will not refer to him or his parents by name and I will refer to the plaintiff only by initials in the title of this judgment.

3

The facts relevant to the present applications are as follows. The plaintiff's son was admitted to Temple Street Children's Hospital on the 9 April 1987 by the plaintiff's wife with a complaint that he had been sexually abused by her husband. The case was referred for assessment to the Sexual Assault Unit of the Rotunda Hospital and the boy was there attended by Dr. King. He was discharged from Temple Street Hospital on the 8 May. Thereafter the plaintiff's wife refused the plaintiff access. The plaintiff had been informed that the principal social worker of the Eastern Health Board would co-ordinate and instigate therapy or treatment as prescribed by Dr. King and on the 11 May the plaintiff was asked to sign a written agreement prepared by the Board. The agreement provided that the Plaintiff and his wife would co-operate inrelation to certain stated arrangements and that if agreement was not forthcoming that the Board would be obliged to take legal advice as to seeking a place-of-safety order. The plaintiff refused to sign. On the 12 May he issued a motion seeking a Court order re-instating his access rights. There was a hearing of the motion on the 15 May when an interim order was made. The matter was adjourned to the 24 June and then to the 17 July. At the hearing on the 17 July Professor Barry O'Donnell gave evidence on the plaintiff's behalf. The plaintiff later also obtained an opinion on the case from an English specialist and lecturer in Child and Adult Psychiatry.

4

In 1990 the plaintiff instituted these proceedings. They are not against his wife, but against Dr. King as the first defendant, the Governors of the Rotunda Hospital as the second defendant, the Eastern Health Board as the third defendant, and the Governors of Temple Street Hospital as the fourth defendant. A Statement of Claim was filed in October 1991 and by separate motions three of the defendants Dr. King, the Governors of the Rotunda Hospital and the Governors of Temple Street Hospital have applied to strike out the Statement of Claim under Order 19 or pursuant to the court's inherent jurisdiction. This judgment gives my conclusions on these applications.

The Law
5

Before referring to the facts relevant to these applications, I should briefly refer to the relevant legal principles.

6

The defendants referred in their Notices of Motion to Order 19 Rules 27 and 28 and also in their submissions to the court's inherentjurisdiction.

7

Order 19 Rule 27 allows the court to strike out any matter in any pleadings which may be "unnecessary", "scandalous" or which may tend to "prejudice, embarrass, or delay" the fair trial of the action. Rule 28 provides that the court may order any pleading to be struck out on theground

"that it discloses no reasonable cause of action or answer and in any such case or in case of the action ..... being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed".

8

In the course of the argument counsel did not rely on Rule 27. Rule 28 only applies where it can be shown that the text of the plaintiff's Summons or Statement of Claim discloses no reasonable cause of action or that the action is frivolous or vexatious. I do not think that the plaintiff's pleadings here can be so regarded (and it was not seriously contested that they should be) and so it follows that if I am to strike out the plaintiff's claims it must be in the exercise of the court's inherent jurisdiction.

9

The principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff's action can be shortly stated. Basically the jurisdiction exists to ensure that an abuse of the court's process does not take place. If it is established by satisfactory evidence that the proceedingsare frivolous or vexatious or if it is clear that the plaintiff's claim must fail then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases ( Barry .v.Buckley (1981) I.R. 306; Sun Fat Chan .v. Osseous Ltd.Supreme Court ( unreported) 30 July 1991).

10

I do not think that the plaintiff's claims are "frivolous". Although they may cause very considerable worry and concern to each of the defendants, I do not think that they can be properly termed "vexatious" as that word is used in the context I am considering. What I am required to consider therefore is whether any of the claims against all or any of the defendants is so clearly unsustainable that I should strike it out.

(1) The plaintiff's claims against Dr. King
11

The plaintiff claims damages against Dr. King for a libel contained in a medical report dated the 13 May 1987, damages for a libel contained in a medical report dated the 24 June 1987, damages for a libel contained in a medical report dated the 14 July...

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