Gerard Martin Fulham v Chadwicks Ltd, Independent Newspapers (Ireland) Ltd and Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 12 March 2021
• Neutral Citation: [2021] IECA 72
• Docket Number: Court of Appeal Record Number: 2020/130
• Date: 12 March 2021
• Court: Court of Appeal (Ireland)

Between/

Gerard Martin Fulham

Appellant

and

Chadwicks Limited, Independent Newspapers (Ireland) Limited and Ireland and The Attorney General

Respondents

[2021] IECA 72

Haughton J.

Ní Raifeartaigh J.

Collins J.

Court of Appeal Record Number: 2020/130

High Court Record Number: 2011/11826P

THE COURT OF APPEAL

Damages – Unlawful imprisonment – Frivolous and vexatious proceedings – Appellant seeking damages for breach of constitutional or natural rights – Whether the proceedings were frivolous and vexatious

Facts: The appellant, Mr Fulham, some two and a half years after the delivery of the judgment in McCann v The Judge of Monaghan District Court & Ors [2009] 4 IR 200, and some four years after his imprisonment, commenced proceedings by plenary summons issued on 21 December 2011, claiming “damages for breach of natural rights and Constitutional rights...for the unlawful imprisonment of the plaintiff in Mountjoy Prison in or about December 2007”. The appellant appealed to the Court of Appeal from an order of the High Court (Barton J) dated 31 January 2020 in which he found that the appellant was not entitled to a trial by jury, and ordered that the proceedings be struck out as being frivolous and vexatious and disclosing no cause of action and being bound to fail. In a judgment delivered ex tempore (Haughton J) on 18 January 2021, the Court of Appeal dismissed the appeal insofar as the first and second respondents were concerned, Chadwicks Ltd and Independent Newspapers (Ireland) Ltd, with costs ordered to be paid by Mr Fulham, and reserved its decision in relation to the appeal against the third and fourth respondents, Ireland and the Attorney General (the State). The key submission of the State was that the finding of unconstitutionality in McCann could not retrospectively render the imprisonment of Mr Fulham unlawful or retrospectively give rise to an infringement of his constitutional rights or a right to damages. In his written submissions, Mr Fulham referred a number of times to breach of his rights under Article 13 of the European Convention on Human Rights, and requested the Court to state a case to the European Court of Human Rights.

Held by Haughton J that the trial judge was correct to find in paragraph 27 of his judgment that he was bound by the principles set out in A v The Governor of Arbour Hill Prison [2006] 4 IR 88 (the A case), and to find that the declaration of unconstitutionality in McCann did not have retrospective effect upon which Mr Fulham could rely, and that Mr Fulham’s claim for damages for breach of constitutional or natural rights was ‘frivolous and vexatious’ (in the legal sense of that term) and disclosed no cause of action/was bound to fail. Haughton J held that just as the A case was binding on the trial judge, so it was binding on the Court. Haughton J held that Mr Fulham’s invocation of Article 13 was misconceived, because the question whether a person is deprived of an effective remedy does not fall to be considered in the abstract; it can only arise in the context of identified violation of ‘rights or freedoms’ enshrined in the Convention and no breach of Convention rights or freedoms was pleaded by Mr Fulham. Haughton J held that Mr Fulham’s request for a reference to the European Court of Human Rights was also misconceived as no jurisdiction to make such a reference to that court is vested in the High Court or in the Court of Appeal. It was difficult for Haughton J to see how it could be said that domestic law did not afford Mr Fulham an effective remedy within the meaning of Article 13. Haughton J held that that this was not an appeal in which the Court should, of its own motion, attempt to rescue Mr Fulham’s action by contemplating or permitting an amendment to the pleadings; the question when and in what circumstances this may be done was a topic that required full argument and consideration in an appropriate future case. Haughton J dismissed the appeal as against the State.

Haughton J held that the High Court order awarding the respondents their costs should not be disturbed, and the State was entitled to its costs of the appeal.

Appeal dismissed.

Unapproved

No Redactions Needed

JUDGMENT delivered by Mr. Justice Robert Haughton on the 12 ^th day of March 2021

Introduction

1 . This is an appeal from an order of Barton J. dated 31 January 2020 in which he found that the appellant (“Mr. Fulham”) was not entitled to a trial by jury, and ordered that the proceedings be struck out as being frivolous and vexatious and disclosing no cause of action and being bound to fail.

2 . In a judgment delivered ex tempore (Haughton J.) on 18 January 2021, this court dismissed the appeal insofar as the first and second named respondents are concerned (“Chadwicks” and “INIL” respectively), with costs ordered to be paid by Mr. Fulham, and reserved its decision in relation to the appeal against the third and fourth named respondents (“the State”).

Background

3 . There is no material dispute in relation to the background facts. Mr. Fulham was a building contractor who in the course of his business ordered and was supplied goods and materials by Chadwicks, and also advertised in INIL's publication.

4 . Mr. Fulham failed to make contractual payments that were due, and on 11 April 2005 Chadwicks obtained judgment in default against him in the Circuit Court for €14,245.63. On that date Chadwicks also obtained an Execution Order against Mr. Fulham's goods, which did not lead to any recovery, and on 8 December 2005 Chadwicks obtained an Instalment Order from the District Court mandating monthly payments of €400 by Mr. Fulham. When that was not complied with, on 12 January 2007, Chadwicks issued a Summons returnable to the District Court seeking the arrest and imprisonment of Mr. Fulham pursuant to s. 6 of the Enforcement of Court Orders Act, 1940.

5 . The relevant part of s. 6 in relation to the hearing of a Committal Summons in the District Court following failure to comply with an instalment order, then provided 1 that –

“(b) on the hearing of an application under the next preceding paragraph of this section, the Justice may, if he so thinks proper but subject to the next following paragraph of this section, order the arrest and imprisonment of the debtor for any period not exceeding three months, and thereupon the debtor shall be arrested and imprisoned accordingly.”

6 . When Chadwicks' Committal Summons came on for hearing before the District Court on 2 March 2007 there was no appearance by Mr. Fulham, and an order was made pursuant to s. 6(b) committing Mr. Fulham to prison for 7 days, with a stay on the order. By letter dated 12 March 2007 Chadwicks' solicitors wrote to Mr. Fulham informing him of the Committal Order of 2 March 2007, and that it was being forwarded by the District Court to the Inspector of Dundrum Garda Station for execution on 16 May 2007.

7 . Independently of that INIL had obtained a Decree against Mr. Fulham in the District Court on 18 October 2004 in the sum of €4,158.97 in respect of advertising in the Independent Directory. Thereafter on 10 February 2005 INIL obtained an Instalment Order in the District Court requiring Mr. Fulham to pay €400 per month. Mr. Fulham failed to comply with that order, following which on the application of INIL on 2 December 2005 the District Court made an order pursuant to s. 6(a) of the 1940 Act committing Mr. Fulham to prison for two days.

8 . Pursuant to these two Committal Orders Mr. Fulham was imprisoned in Mountjoy Prison from 21 December 2007 to 28 December 2007. It is regrettable that this occurred over the Christmas period, and there can be little doubt but this imprisonment caused Mr. Fulham, and his family, great upset and distress.

9 . It is however important to note that Mr. Fulham did not appeal or legally challenge any of the orders made in the District Court which resulted in his imprisonment. Indeed, he does not appear to have engaged with the District Court, or with Chadwicks or INIL, in any meaningful way. It is also worth noting that Mr. Fulham does not make the claim that he was not served with notice of the District Court hearings, or of the Instalment Orders or Committal Orders.

The McCann case

10 . In a decision handed down on 18 June 2009 (Laffoy J.) in McCann v The Judge of Monaghan District Court & Ors. [2009] 4 I.R. 200) it was held that s. 6 of the Enforcement of Court Orders Act, 1940 was invalid having regard to the provisions of Articles 34, 40.3° and 40.4.1° of the Constitution.

11 . The background facts were that Ms. McCann was a single women with two children, and a member of the travelling community. By her own admission she was a “bad reader”; she had a history of alcohol abuse and psychiatric illness. She was reliant on social welfare. Judgment was obtained against her for €18,063 by Monaghan Credit Union, who in due course obtained an instalment order for €82 per week. She was duly served with the application to Monaghan District Court for the instalment order, and the committal summons that followed when she made no payments. In 2005 she was ordered to be imprisoned for 1 month unless the arrears of €5658 and costs were paid. An Garda Síochána held off arresting her for long enough for her to get legal advice. She made an application to extend time to appeal the District Court committal order, which was refused, following which proceedings were initiated in the High Court.

12 . Ms. McCann sought to challenge the validity of the order committing her to prison for one month. She also (following amendment of the Statement of Claim at the trial) challenged the constitutionality of s. 6.

13 . Ms. McCann further claimed that s.6 was incompatible with the State's obligations under the European Convention on Human Rights 1950 (“the Convention”), citing inter alia article 6.2 (“Everyone charged with a criminal...