Davey v Wallace and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Sara Phelan
• Judgment Date: 12 March 2025
• Neutral Citation: [2025] IEHC 146
• Docket Number: Record No. 2019/230P

Between

Francis Davey

Plaintiff

and

Kieran Wallace & Mark Etherington

Defendants

[2025] IEHC 146

Record No. 2019/230P

THE HIGH COURT

Breach of trust – Breach of fiduciary duty – Bound to fail – Defendants seeking to dismiss the plaintiff’s claim – Whether the plaintiff’s claim was bound to fail

Facts: The plaintiff, Mr Davey, sought damages for inter alia breach of trust and breach of fiduciary duty, together with declaratory orders encompassing the alleged failure of the defendants, Mr Wallace and Mr Etherington, to appropriately manage and/or maintain certain of the plaintiff’s properties. The plaintiff subsequently sought inter alia an order declaring the defendants incompetent in their duties, causing loss and harm; an order dismissing the defendants from their role as receivers; and an order for damages for dereliction of the defendants’ duties. Whilst the plaintiff appeared to maintain his claim against the defendants in their capacity as receivers, the plaintiff also disputed the validity of their appointment as receivers. Much of the remainder of the statement of claim was taken up with the plaintiff’s complaint that certain of the properties were placed for sale when the defendants did not have power of sale, together with allegations that the defendants allowed the properties go into serious disrepair and did not manage or maintain the properties such that rent was not collected from tenants, and new tenants were not found when existing tenants vacated certain of the properties. The defendants applied to the High Court seeking to dismiss the plaintiff’s claim against them on the grounds that the plaintiff’s claim disclosed no cause of action, was frivolous and vexatious and was bound to fail. The defendants also sought an order restraining the plaintiff from issuing further proceedings against the defendants, their servants or agents, save with the prior permission of the President of the High Court.

Held by Phelan J that: (a) the defendants’ motion was precipitous, given that the validity of the appointment of the receivers remained to be fully determined; (b) a motion to compel further and better replies to particulars may be necessary in the context of the proceedings so that consideration may be given as to whether or not the plaintiff could bring himself within the test as set out in Medforth v Blake ? and (c) the representations made to Stack J as set out at §36 of her judgment ([2022] IEHC 120) were predicated upon the plaintiff maintaining the case before the court. In light of the foregoing, the court was not satisfied to grant the relief sought by the defendants.

Phelan J held that, as regards the second relief sought by the defendants, being an order restraining the plaintiff from issuing further proceedings against the defendants, their servants or agents, save with the prior permission of the President of the High Court, that relief was not pressed by counsel at hearing and indeed counsel for the defendant correctly drew the court’s attention to §60 of the judgment of Stack J in the 2019 proceedings wherein Stack J stated “[h]owever, again it seems to me that, for the reasons already set out above, this is not a situation where the defendant is engaged in harassment of the plaintiffs or an abuse of process by engaging in serial litigation where issues are held back until proceedings are determined and then fresh proceedings are issued in order to litigate issues which could have been decided in the first proceedings” and, as such, the court was not prepared to grant such relief.

Application refused.

JUDGMENT of Ms Justice Sara Phelan delivered on the 12 ^th day of March 2025

Introduction

1 This is an application in which the defendants seek to dismiss the plaintiff's claim against them on the grounds that the plaintiff's claim discloses no cause of action, is frivolous and vexatious and is bound to fail. The matter came before the court by way of the defendants' motion, seeking such relief pursuant to Order 19, rule 28 of the Rules of the Superior Courts 1986 [“RSC”] and/or the inherent jurisdiction of the High Court, and the application history is set out in more detail at §66 hereunder. The defendants also seek an order pursuant the inherent jurisdiction of the High Court restraining the plaintiff from issuing further proceedings against the defendants, their servants or agents, save with the prior permission of the President of the High Court. At the hearing of the motion, the defendants were represented by senior counsel and junior counsel, instructed by solicitor, whilst the plaintiff was a litigant in person.

2 For the reasons set out hereunder, the reliefs sought are refused.

Background

3 The plaintiff issued a plenary summons on 11 January 2019, bearing the record number 2019/230P. This plenary summons was directed to the defendants who had previously been appointed as joint receivers [“the receivers”] over certain of the plaintiff's properties [“the properties”]. And whilst the second-named defendant in the within proceedings [“the proceedings”] was one of the original receivers appointed, this second-named defendant subsequently resigned as joint receiver and on the same day a separate joint receiver was appointed, albeit that no application appears to have been made to rectify the title to the proceedings in this regard.

4 The plaintiff, by way of this plenary summons, sought damages for inter alia breach of trust and breach of fiduciary duty, together with various declaratory orders, which can be categorised as encompassing the defendants' alleged failure to appropriately manage and/or maintain the properties. The plaintiff subsequently delivered a statement of claim on 30 September 2019, in which he sought inter alia an order declaring the defendants incompetent in their duties, causing loss and harm; an order dismissing the defendants from their role as receivers; and an order for damages for dereliction of the defendants' duties.

5 It is of note that whilst the plaintiff appeared to maintain his claim against the defendants in their capacity as receivers, the plaintiff also disputed the validity of their appointment as receivers [and this paradox grounds the defendants' application] and in the statement of claim it was pleaded

“4. Both defendants claim to have been validly appointed as receivers over certain properties owned by the plaintiff and irrespective of the validity of the appointment of the defendants, the defendants are maintaining they are validly appointed.

5. Therefore, for the purpose of this case, the assumption is that they are validly appointed, and that's the best it can be for the defendants, it is therefore the claim of the plaintiff that the defendants are guilty of gross negligence in their duty as receivers in relation to the plaintiff and his properties.

…..

9. The plaintiff did oppose the appointment from the get go and did not believe their appointment was valid nor did he believe they had any power of sale over any of his properties.”

The significance of the plaintiff's dispute as to the validity of the defendants' appointment will become apparent in due course.

6 Much of the remainder of the statement of claim was taken up with the plaintiff's complaint that certain of the properties were placed for sale when the defendants did not have power of sale, together with allegations that may be broadly categorised that the defendants allowed the properties go into serious disrepair and did not manage or maintain the properties such that rent was not collected from tenants, and new tenants were not found when existing tenants vacated certain of the properties, including a public house.

7 An appearance was entered on behalf of the defendants on 11 October 2019 and a notice for particulars was served on 17 December 2019. The notice for particulars was a detailed one, in which [and arising out of the allegations contained in the statement of claim] the defendants sought full and detailed particulars, of/for inter alia:

together with a significant number of additional particulars, the details of which are not germane to the application before the court.

• a. any alleged invalidity of the appointment of the defendants as receivers over the properties and whether the plaintiff had issued proceedings challenging the appointment of the receivers;

• b. the alleged “gross negligence” of duties by the defendants, including but not limited to:

  • i. the duty of care it was alleged the defendants had breached;

  • ii. the defendants' action/s it was alleged that breached that duty of care;

  • iii. the precise date/s it was alleged the defendants breached that duty of care;

8 A reply to the notice for particulars was delivered on 09 June 2020 in which the plaintiff contended that much of what was sought by way of particulars was a matter for the trial and/or not a matter for particulars and/or that the defendants had already been provided with the information and/or that it was a matter for evidence and/or that the particular was repetitive and had been addressed in full earlier and that “particulars were never intended as a weapon of choice to be used by well-resourced defendants with copious legal knowledge to delay a plaintiff's civil right to a Hearing”.

9 The defendants did not bring a motion to compel further and better replies to particulars [as they could have done pursuant to the provisions of RSC Order 19, rule 7] and instead, a full defence was delivered on 06 July 2020, in which the defendants pleaded, by way of preliminary objection, that

Shortly after the delivery of the defence, the defendants issued the motion as more particularly described in the ‘Introduction’ above.

• “1. The Statement of Claim herein fails to disclose any cause of action against the Defendants which is known to law. Further or in the alternative, the proceedings are frivolous, vexatious and are...