Ennis v Butterly

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date01 January 1997
Neutral Citation[1996] IEHC 51
Date01 January 1997
Docket Number[1995 No. 3361P]

[1996] IEHC 51

THE HIGH COURT

No. 3361p/1995
ENNIS v. BUTTERLY

BETWEEN

BERNADETTE ENNIS
PLAINTIFF

AND

COLM BUTTERLY
DEFENDANT

Citations:

RSC O.19 r27

RSC O.19 r28

BARRY V BUCKLEY 1981 IR 306

GOODSON V GRIERSON 1908 1 KB 761

SUN FAT CHAN V OSSEOUS LTD 1992 1 IR 425

K (D) V K (A) 1993 ILRM 710

O'NEILL V RYAN 1993 ILRM 557

WILSON V CARNLEY 1908 1 KB 729

SPEARS V HUNT 1908 1 KB 720

SIVEYER V ALLISON 1935 2 KB 403

MARVIN V MARVIN 1976 18 CAL 3d 660

MORONE V MORONE 1980 429 NYS 2d 592

WINDELER V WHITEHALL 1990 2 FLR 505

BEAUMONT V REEVE 8 QB 483

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

CONSTITUTION ART 41.3.1

EVES V EVES 1975 3 AER 768

TANNER V TANNER 1975 3 AER 776

DERRY V PEEK 1889 14 AC 337

FAMILY LAW ACT 1981 S1

CONSTITUTION ART 41

Synopsis:

CONSTITUTION

Family

Protection - Contract - Terms - Cohabitation - Public policy - Contravention - Cohabitation agreement between two separated married persons - Separated married woman induced to cease business venture and to live with separated married man by his promise of financial support - Cohabitation without financial support - Termination of agreement - Plaintiff woman claimed damages for breach of contract - Plaintiff claimed damages for deceit or for negligent misrepresentation - Contractual claim struck out of statement of claim - (1995/3361 P - Kelly J. - 26/7/96) - [1996] 1 I.R. 426 - [1997] 1 ILRM 28

|Ennis v. Butterly|

PRACTICE

Pleadings

Deletion - Defendant - Application - Action - Cause of action in conflict with public policy - Cohabitation agreement between two separated married persons - Separated married woman induced to cease business venture and to live with separated married man by his promise of financial support - Cohabitation without financial support - Termination of agreement - Plaintiff woman claimed damages for breach of contract - Public policy - Plaintiff claimed damages for deceit or for negligent misrepresentation - Contractual claim struck out of statement of claim - Rules of the Superior Courts, 1986 (S.I. No 15), order 19, rr. 27. 28 - Family Law Act, 1981 (No. 22), s. 2 - Constitution of Ireland, 1937, Article 41 - (1995/3361 P - Kelly J. - 26/7/96) - [1996] 1 I.R. 426

|Ennis v. Butterly|

WORDS AND PHRASES

"Public policy"

Contravention - Contract - Terms - Cohabitation - Cohabitation agreement between two separated married persons - Separated married woman induced to cease business venture and to live with separated married man by his promise of financial support - Cohabitation without financial support - Termination of agreement - Plaintiff woman claimed damages for breach of contract - Public policy - Plaintiff claimed damages for deceit or for negligent misrepresentation - Contractual claim struck out of statement of claim - (1995/3361 P - Kelly J. - 26/7/96) - [1996] 1 I.R. 426

|Ennis v. Butterly|

1

Judgment of Mr. Justice Kelly delivered the 26th day of July, 1996

THE APPLICATION
2

The Defendant seeks to have the Plaintiff's amended Statement of Claim struck out in its entirely. He seeks such an Order pursuant to the provisions of Order 19, Rules 27 and 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court.

3

Order 19, Rule 27 reads as follows:-

"The Court may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between Solicitor and client."

4

Rule 28 reads:-

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in cases of the action or defence being shown by the pleadings to be frivolous or vaxatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just."

5

Apart from these two rules, the Court has an inherent jurisdiction to stay proceedings that are frivolous or vexatious or propound a claim which must fail. It is this inherent jurisdiction which has largely been relied upon by the Defendant in this application.

6

The principles upon which the Court exercises this jurisdiction have been considered in a number of cases. In Barry -v- Buckley. ( [1981] I.R. 306), Costello J. (as he then was) said at p. 308:-

"The principles on which the Court exercises this jurisdiction are well established. Basically, its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the Plaintiff's claim must fail; Per Buckley L.J. in Goodson -v- Grierson. 1908 1 KB 761 at 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence."

7

In Sunfat Chan -v- Osseous Limited ( [1992] 1 I.R. 425at 428), McCarthy J., speaking for the Supreme Court, said:-

"Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought. Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour."

8

The jurisdiction was again considered by Costello J. in D.K. -v- A.K., ( [1993] I.L.R.M. 710) where he repeated the principles enunciated by him in Barry -v- Buckley. Having expressed the view that the Plaintiff's claims were neither frivolous nor vexatious, Costello J. went on to say at p.713:-

"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."

9

His approach to this jurisdiction was considered by the Supreme Court in O'Neill -v- Ryan. ( [1993]) I.L.R.M. 557). Blayney J., at 561, expressly approved the approach of Costello J. in D.K. -v- A.K. as being correct.

10

In view of the fact that this inherent jurisdiction is relied on by the Defendant, it is permissible for Affidavit evidence to be adduced. A number of Affidavits have been filed and I will consider their contents in due course. From the point of view of this application, however, it is conceded by Mr. McDowell on behalf of the Defendant that I must assume

11

(a) that every fact pleaded by the Plaintiff in her amended Statement of Claim is correct and can be proved at trial, and

12

(b) that every fact asserted by her on Affidavit is likewise correct and can be proved at trial.

13

This approach necessarily means that, insofar as there may be conflict between matters averred to by the Plaintiff and the Defendant on their respective Affidavits, such conflicts must be resolved in favour of the Plaintiff. Adopting this approach, as I do, I now proceed to consider the application.

THE ACTION
14

The Plaintiff commenced these proceedings by the issue of a Plenary Summons on the 9th May, 1995. The general Endorsement of Claim claimed damages for breach of contract, negligent misrepresentation, fraudulent misrepresentation and a sum of £175,000. In addition, it sought a declaration that the Plaintiff was entitled, as beneficial owner, to one half of the value of a cheque in the sum of £350,000 dated the 27th September, 1993 and drawn by Maxol Limited on the Ulster Bank at 2/4 Lower O'Connell Street in favour of Choppard International Limited. The Endorsement of Claim also sought a declaration that the Defendant held the sum of £175,000 in trust for the Plaintiff or, alternatively, a declaration that the Plaintiff was entitled to such a proportion of the cheque as to the Court seemed just.

15

That summons was followed by a Statement of Claim delivered on the 30th May, 1995 which prayed for the same reliefs.

16

The present motion was initiated on the 27th June, 1995 and thereafter Affidavits were exchanged. One of the exhibits to an Affidavit of the Plaintiff sworn in July 1995 consisted of an amended Statement of Claim. I permitted delivery of that amended Statement of Claim. This accords with the views expressed by McCarthy J. in the Chan case where he said that he inclined to the view that if the Statement of Claim in an action admitted of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed. It is to this amended Statement of Claim that Mr. McDowell has directed his fire, contending that the Plaintiff's claim is not saved by it. In fact, he says that no part of the Statement of Claim should survive his attack.

17

In the light of this, I must set forth in its totality the amended Statement of Claim. It reads as follows:-

18

2 "1. The Plaintiff is a married lady with one son but living separate and apart from her husband since about the year 1978.

19

2. The Defendant is a married man with three children but living separate and apart from his wife since about the year 1977.

20

3. When the Plaintiff and Defendant first met in September 1984, the Plaintiff was the owner of a successful ladies wholesale fashion business.

21

4. Between September 1984 and September 1985, the Plaintiff and the Defendant formed a close personal and ultimately intimate relationship; in or about the...

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34 cases
  • A.F. v S.F.
    • Ireland
    • High Court
    • 4 May 2007
    ...to the application based on Order 19, Rule 28, the respondent relied on the authority of the judgment of Kelly J. in Ennis v. Butterly [1996] 1 I.R. 426 where it was held that "agreements, the consideration for which is cohabitation are incapable of being enforced". In that case Mr. Justic......
  • Hosey v Ulster Bank Ltd
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    ...its adjudication based on the assumption that the plaintiff will prove the facts which they allege at trial. In Ennis v. Butterly [1996] 1 I.R. 426 at 431, Kelly J. set this principle out as follows:- 'In view of the fact that this inherent jurisdiction is relied on by the defendant, it is......
  • O'Neill v McCann Fitzgerald Solicitors and ors
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    • Supreme Court
    • 13 February 2017
    ...... the test to be applied by a Court in considering whether proceedings should be struck out, as stated by the High Court (Kelly J.) in Bernadette Ennis v. Colm Butterly 1 I.R. 426. Hedigan J, at paragraph 3 of his judgment, summarised the principles as set out in that case as follows:- ......
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    ...to fail may equally be dismissed pursuant to the court's inherent jurisdiction. Thus, Kelly J. (as he then was) in Ennis v. Butterly [1996] 1 I.R. 426 noted (at p. 429): 'Apart from these two rules [Order 19 rules 27 and 28], the court has an inherent jurisdiction to stay proceedings that ......
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5 books & journal articles
  • Should have put a Ring on it?' A Comparative Analysis of the Law of Cohabitation in Ireland, Scotland and England and Wales
    • Ireland
    • Hibernian Law Journal Nbr. 11-2012, January 2012
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    ...de Raya and Gawor & Co . [2004] 1 F.L.R. 837, p.22. Confusion as regards these contracts arose from the case of Ennis v Butterly [1996] 1 I.R. 426, where a “cohabitation contract” was seen as contrary to public policy. The contract, as well as providing for financial and property affairs, w......
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