Foley v Smith

• Jurisdiction: Ireland
• Judge: Mr Justice Vivian Lavan
• Judgment Date: 16 July 2004
• Neutral Citation: [2004] IEHC 299
• Docket Number: [2001/3488P]
• Court: High Court
• Date: 16 July 2004

[2004] IEHC 299

THE HIGH COURT

HC 299/04

[2001 No. 3488P]

FOLEY v. SMITH

MICHAEL FOLEY

PLAINTIFF

AND

CATHERINE SMITH

DEFENDANT

Citations:

MCCAULEY V MCDERMOTT 1997 2 ILRM 486

A (A) V MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

JOHNSON V GORE WOOD & CO 2001 2 WLR 72

COX V DUBLIN CITY DISTILLERY (NO 3) 1923 KB 432

CONSTITUTION 1937

KARL ZEISS STIFUNG V RAYNER & KEELER LTD (NO 2) 1967 1 AC 853

SWEENEY V BUS ATHA CLIATH (DUBLIN BUS) & ORS UNREP O'NEILL 3.1.2004

Synopsis:

- [2004] 3 IR 538

The defendant in the present proceedings, which arose out of a road traffic accident, had obtained a decree against the plaintiff in the District Court arising out of the same accident. The defendant applied to the High Court by motion on notice to have the plaintiff's High Court proceedings struck out on the basis that the issues sought to be litigated therein were res judicata.

Held by Lavan J in denying the application to have the proceedings struck out, that the operation of the principle of res judicata required the courts to examine the competing interests of the parties, namely the constitutional right of the plaintiff to access the courts and the opposing right of the defendant to be protected from a multiplicity of suits from an opponent and that an injustice would be caused to the plaintiff if the decree of the District Court was allowed to overrule the High Court proceedings.

Reporter: P. C.

1 Mr Justice Vivian Lavan delivered on the 16th day of July, 2004.

2 The defendant seeks an order setting aside the plaintiff's claim on the grounds that the matters in question in the proceedings are res judicata. In May 2000, the plaintiff instituted High Court proceedings against the defendant following a road traffic accident. In May 2002, the defendant issued District Court proceedings against the plaintiff, with the plaintiff's insurers acting for him in that regard. However, due to an error on the part of the plaintiff's insurers, the plaintiff was neither present nor represented in the District Court when judgement was obtained against him.

Issues

3 The issue before the court is whether or not the decree of the District Court binds the plaintiff in the High Court proceedings against the defendant, where both sets of proceedings arose out of the same incident.

Submissions

4 Counsel on behalf of the plaintiff submits that it was not the plaintiff's omission that he was unable to defend the District Court proceedings; rather, it had been his intention to do so. The issue that the defendant argued as being res judicata, had never been subjected to the scrutiny of a fully contested hearing, and consequently, the plaintiff never had the opportunity to respond to such. It was also submitted that the solicitors for the defendant failed to inform the defendant, within a reasonable period such to allow him to appeal, that judgement had been entered against him.

5 Counsel cited the decision of Keane J. in McCauley v. McDermott [1997] 2 ILRM 486 wherein the two main principles forming the doctrine of res judicata are set out as;

6 1. The general interest the community in the termination of disputes and in the finality and conclusiveness of judicial decisions, and

7 2. The right of an individual to be protected from a vexatious multiplicity of suits at the instance of an opponent.

8 Counsel suggests that the application by the defendant ought to be considered in relation to an assessment of the conflicting rights of the two parties, namely the constitutional right of the plaintiff to access the courts and alternatively, the right of the defendant to be protected from a vexatious number of suits from an opponent.

9 In response to the assertion by the defendant, to a right of protection against a multiplicity of actions arising out of the same incident, counsel on behalf of the plaintiff refers to the Supreme Court in Ahmed v. The Medical Council [2004] 1 ILRM 372, wherein Hardiman J. looked to the decision of Johnson v. Gore Wood & Co. [2000] 2 WLR 72, where Bingham LJ stated at p.90:-

"...abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not twice be vexed in the same matter."

10 Hardiman J. continued:-

"Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the Courts for the determination of his civil rights or liabilities. This point has a particular resonance in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, 1950."

11 The plaintiff submits that the decision in Ahmed suggests that the law applicable to both...