Dalton v Flynn

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 20 May 2004
• Neutral Citation: 2004 WJSC-HC 2704
• Court: High Court
• Docket Number: No. 5227P/2003
• Date: 20 May 2004

2004 WJSC-HC 2704

THE HIGH COURT

No. 5227P/2003

HC 195/04

DALTON & RYAN v. FLYNN

BETWEEN/

JOHN DALTON MICHAEL RYAN AND NORA RYAN

PLAINTIFFS

AND

KIERAN T. FLYNN

DEFENDANT

Citations:

RSC O.19 r27

RSC O.19 r28

BARRY V BUCKLEY 1981 IR 306

COURTS OF JUSTICE ACT 1936 S38(2)

COURTS OF JUSTICE ACT 1936 S39

MCCAULEY V MCDERMOTT 1997 2 ILRM 486

STEPHENSON V GARNETT 1898 1 QB 677

REICHEL V MCGRATH 1889 14 AC 665

HENDERSON V HENDERSON 1843 3 HARE 100

CARROLL V RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

O'MALLEY V IRISH NATIONWIDE BUILDING SOCIETY UNREP COSTELLO 21.1.94 1994/6/1669

Abstract:

Practice and procedure - Dismissal of proceedings - Res judicata - Abuse of process - Whether plaintiff attempting to re-litigate issues or go behind order of High Court

Facts: The defendant sought an order striking out the proceedings on the grounds that they were res judicata and/ or an abuse of process of the court. The defendant contended that the plaintiff was attempting to re-litigate issues which were or could have been determined in earlier proceedings and was mounting a collateral attack on an earlier judgment of the court.

Held by Laffoy J. in striking out portions of the plaintiff's statement of claim that insofar as the proceedings were attempting to go behind the order of the High Court on Circuit and re-litigate the issues as to the validity of the will, certain pleadings and claims in these proceedings had to be struck out.

Reporter: R.W.

1 Miss Justice Laffoy delivered on 20th May, 2004.

Factual Background

2 These proceedings flow from or are connected with the following litigation and court orders:

3 1. The starting point is equity proceedings in the Circuit Court, South Eastern Circuit, County Tipperary between Thomas Ryan, as plaintiff, and the second and third named plaintiffs herein, Michael Ryan and Nora Ryan, as defendants. Michael Ryan and Nora Ryan are brother and sister. Thomas Ryan is no relation of theirs. However, he is personal representative of their late brother Patrick Ryan, who died on 11 ^th November 1997 having made his last will and testament on 19 ^th May 1994, wherein he appointed Thomas Ryan his universal legatee and devisee and sole executor. Probate of the will of Patrick Ryan deceased was granted to Thomas Ryan on 29 ^th May 1998. The solicitors acting on behalf of Thomas Ryan in the equity proceedings were Kieran T. Flynn and Company and the defendant in these proceedings, Kieran T. Flynn (Mr. Flynn), is the principal of that firm.

4 The equity proceedings were assigned Record No. E/729/98. In the proceedings it was pleaded that, at his death, Patrick Ryan deceased was-

5 (a) the registered owner of the lands registered in folio 1174F County Tipperary comprising 60.6 acres, and

6 (b) the beneficial owner of part of the lands registered on folio 17380 County Tipperary comprising 36.374 acres under the terms of the settlement of earlier equity proceedings initiated in the Circuit Court in 1991, in respect of which Thomas Ryan was awaiting an assent executed by Michael Ryan, as personal representative of James Ryan deceased, who was a brother of Patrick Ryan deceased, and of Michael Ryan and Nora Ryan.

7 In the equity proceedings it was alleged that Michael Ryan and Nora Ryan were trespassing on the lands registered on folios 1174F and 17380 (part). The relief claimed included, inter alia, the following orders:

8 (i) an order for possession of the lands;

9 (ii) an order directing Michael Ryan, as personal representative of James Ryan deceased, to execute an assent in relation to the relevant part of the lands registered on folio 17380; and

10 (iii) an injunction restraining Michael Ryan and Nora Ryan from trespassing on the lands.

11 2. On 16 ^th July 1998 a Testamentary Civil Bill issued in the Circuit Court, South Eastern Circuit, County of Tipperary in which Michael Ryan and Nora Ryan were named as plaintiffs and Thomas Ryan was named as defendant. Record No. 740/98 was assigned to the proceedings. In the proceedings, Michael Ryan and Nora Ryan claimed, inter alia, a declaration that the will of Patrick Ryan deceased dated 19 ^th May 1994 was invalid and an order revoking the grant of probate thereof on a number of grounds.

12 3. The equity proceedings and the Testamentary Civil Bill proceedings were consolidated. The consolidated proceedings were heard in the Circuit Court on 23 ^rd March, 1999, 22 ^nd April 1999, 31 ^st May 1999 and 1 ^stJune 1999. On 1 ^st June 1999 an order was made by the Circuit Court judge to the following effect:

13 (a) that the proceedings under Record No. 740/1998 were dismissed;

14 (b) that Thomas Ryan recover possession of the lands; and

15 (c) that the Registrar of Titles register Thomas Ryan as owner of part of the lands registered on folio 17380 specified together with a specified right of way.

16 4. Michael Ryan and Nora Ryan appealed against the order of the Circuit Court dated 1 ^st June 1999 in the consolidated proceedings. The appeal came before the High Court on Circuit (Ban J.) on 4 ^th April 2000. Kieran T. Flynn and Company, Solicitors, acted for Thomas Ryan on the appeal. On 4 ^th April 2000 an order was made by Barr J., by consent of the parties, in which, after reciting that the parties had agreed terms of settlement which had been reduced to writing and signed by the parties on 3 ^rd April 2000, it was ordered, inter alia, as follows:

17 (a) that the appeal was allowed;

18 (b) that the terms of settlement, as signed by the parties and annexed as a schedule to the order, were received by the court;

19 (c) that the last will and testament of Patrick Ryan deceased made on 19 ^th May 1994 was lawfully and validly executed and was properly and lawfully admitted to probate on 29 ^th May 1999;

20 (d) that the grant of probate was confirmed;

21 (e) that Michael Ryan and Nora Ryan be registered as owners of lands described in schedule No. 1 of the terms of settlement, recording that that they were taking the benefits in the due course of the administration of the estate of Patrick Ryan deceased;

22 (f) that the Registrar of Titles rectify the title in accordance with the terms of settlement and;

23 (g) that there was liberty to re-enter the proceedings.

24 Following certain other provisions, it was provided that the order of the Circuit Court be varied to accord with the order of the High Court on Circuit. Finally, the Court noted that all the parties agreed to take all necessary steps to give effect to the order and the terms of settlement.

25 5. By notice of motion dated 14 ^th February 2001 Thomas Ryan applied to the High Court on Circuit in the consolidated proceedings seeking to re-enter the matter before the High Court on Circuit for the purposes of obtaining a declaration that certain specified sums were due by Michael Ryan and Nora Ryan to Thomas Ryan on foot of the terms of settlement and an order for payment of the said sums. Further, Thomas Ryan sought, if necessary, an order requiring Michael Ryan and Nora Ryan to do all things and acts as necessary to give effect to the terms of settlement in accordance with the agreement noted in the court order and also an order requiring Michael Ryan and Nora Ryan to forthwith vacate property other than the property of which they were to be registered as owner in accordance with the terms of settlement.

26 6. On 26 ^th March 2001 an order was made by the High Court (Kinlen J.) on foot of that motion, wherein the court ordered that the matter be re-entered for the purpose of declaring the sums specified to be due to Thomas Ryan on foot of the terms of settlement. Further, the court ordered payment of the specified sums. The evidence before this Court discloses that, prior to the hearing of the motion, the solicitors on record for Michael Ryan and Nora Ryan had successfully applied to come off record. The order itself recited that the court had refused Michael Ryan an adjournment in order to consult with a solicitor, he having refused to give an undertaking on oath to the court not to interfere himself or to allow anybody on his behalf to interfere with certain lands. The order further recited that the court heard the oral evidence of Michael Ryan and that John Dalton, the first named plaintiff in these proceedings, was allowed to speak on behalf of Michael Ryan. In the order the court reserved the question of costs.

27 7. On 7 ^th July 2001 proceedings were initiated in this Court (2001 No. 8561P) between Thomas Ryan, as plaintiff, and Michael Ryan, Nora Ryan and John Dalton, as defendants. In those proceedings the primary relief claimed by Thomas Ryan is specific performance of the terms of settlement dated 3 ^rdApril 2000. It is also alleged that Michael Ryan and John Dalton were guilty of trespass and nuisance on and in relation to lands of Thomas Ryan, being parts of Folios 1174F and 17380 and injunctive relief is sought.

28 8. By order of this Court (O'Donovan J.) dated 5 ^th November 2001 made in the proceedings 2001 No. 8561P an interlocutory injunction was granted to Thomas Ryan restraining Michael Ryan, Nora Ryan and John Dalton from interfering with portion of the property of Thomas Ryan or its surrounding fencing.

29 9. A defence and counterclaim were delivered in proceedings 2001/8561P on 18 ^th November 2002. The defence traversed the claim in its entirety. There followed a counterclaim, which was expressed to be without prejudice to the defence. In the counterclaim, Michael Ryan, Nora Ryan and John Dalton sought the following reliefs:

30 (a) to have Mr. Flynn, the defendant in these proceedings, made a party to the action;

31 (b) an order consolidating the High Court proceedings 2000/8561P with the consolidated proceedings;

32 (c) an order setting aside the agreement of 3 ^rd April 2000 and the order of the High Court on Circuit of 4 ^th April 2000 on the grounds...