D.K. v King

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1990 No. 5306P]
• Court: High Court

High Court

[1990 No. 5306P]

D.K. v. King

D.K.

Plaintiff

and

Anne King, The Governors of the Rotunda Hospital, The Eastern Health Board and The Governors of Temple Street Hospital

Defendants

Cases mentioned in this report:—

Barry v. Buckley [1981] I.R. 306.

Bottomley v. Brougham [1908] 1 K.B. 584.

Law v. Llewellyn [1906] 1 K.B. 487.

Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425.

Watson v. McEwan [1905] A.C. 480.

Practice - Statement of claim - Motion to strike out statement of claim - Court may strike out a statement of claim where it is unnecessary, frivolous, vexatious, scandalous or discloses no reasonable cause of action - Inherent jurisdiction of court to strike out claim where it is frivolous or clearly unsustainable - Matters to be considered in determining whether a claim is clearly unsustainable - Whether claim raises controversial issues of law and fact - Whether an abuse of the process of the court - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 19, rr. 27 and 28.

Notice of Motion.

The facts and relevant rules of the Rules of the Superior Courts, 1986, have been summarised in the headnote and are set out fully in the judgment of Costello J., post.

By a plenary summons issued on the 10th April, 1990, the plaintiff issued proceedings in which he claimed damages for libel, negligence, breach of constitutional rights and breach of contract. Appearances were entered by the four defendants on the 5th March, 1991, the 14th August, 1991, the 14th January, 1991, and the 20th April, 1991 respectively.

By three separate notices of motion dated the 28th April, 1992, the 25th May, 1992, and the 15th May, 1992, the first, second and fourth defendants sought orders pursuant to O. 19, rr. 27 and 28 of the Rules of the Superior Courts, 1986, to strike out the plaintiff's statement of claim.

The motions were heard by the High Court (Costello J.) on the 27th May, 1992, and the 30th June, 1992.

Order 19, r. 27 of the Rules of the Superior Courts, 1986, provides that a court may strike out any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarass or delay the fair trial of an action. Order 19, r. 28 provides that a court may order any pleading to be struck out where "it discloses no reasonable cause of action" or where it appears on the pleadings that the action is "frivolous or vexatious."

The plaintiff was separated from his wife. His wife had been granted custody of their only son. By court order access on a regular basis had been granted to the plaintiff.

The plaintiff's wife admitted their son to Temple Street Childrens Hospital (the fourth defendant). She alleged that the plaintiff had sexually abused him. The matter was referred to the sexual assault unit of the Rotunda Hospital (the second defendant) where the son was attended by the first defendant. She diagnosed him as having been sexually assaulted by the plaintiff. Following the son's discharge from hospital, the plaintiff's wife refused to allow the plaintiff to have access to him.

On the 12th May, 1987, the plaintiff issued proceedings seeking the re-instatement of his access rights. On the 15th May, 1987, an interim order was made and the proceedings were adjourned to June and thereafter to July. During this period the first defendant prepared three medical reports, dated the 13th May, 24th June, and 14th July, 1987, respectively.

In 1990 the plaintiff issued proceedings seeking damages for libel allegedly contained in the three medical reports, damages for negligence for misdiagnosis of sexual abuse, damages for alleged breaches of constitutional rights, and damages for alleged breach of contract.

In these proceedings, by separate motions, the first, second, and fourth defendants applied to have the plaintiff's statement of claim struck out pursuant to O. 19, rr. 27 and 28 of the Rules of the Superior Courts, 1986, and pursuant to the inherent jurisdiction of the court.

On behalf of the first defendant it was argued the claim for damages for libel was unsustainable on the grounds that the medical reports, having been prepared on foot of requests by the plaintiff's wife's solicitor, were protected by absolute privilege. However, correspondence exhibited in these proceedings indicated that the solicitor's letter requesting the first medical report was written after the report itself had been prepared. No question of fact in this regard arose concerning the second and third reports and in relation to the second of them the plaintiff's wife's solicitor indicated to the first defendant that it would be made available to the plaintiff.

Further, it was contended that the first defendant owed no duty of care to the plaintiff; that the plaintiff's constitutional rights had not been breached; and that no contract had been entered into between the first defendant and the plaintiff.

On behalf of the second and fourth defendants it was contended that insofar as the statement of claim alleged that they were vicariously liable for the wrongful acts of the first defendant the pleadings lacked particularity.

Held by Costello J., in refusing the application, 1, that the plaintiff's statement of claim could not be regarded as being frivolous, vexatious or disclosing no reasonable cause of action and accordingly could not be struck out pursuant to O...