Gerardine Scanlan v Paul Gilligan, Maurice Collins, Joe Jeffers, Shane O'Brien, Fiona O'Beirne, Grant Thornton Corporate Finance Ltd, Aidan Connaughton, Ireland, The Attorney General and The Data Protection Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 825
• Court: High Court
• Docket Number: [2019 No. 7318 P.]

Between

Gerardine Scanlan

Plaintiff

and

Paul Gilligan, Maurice Collins, Joe Jeffers, Shane O'Brien, Fiona O'Beirne, Grant Thornton Corporate Finance Limited, Aidan Connaughton, Ireland, The Attorney General and The Data Protection Commissioner

Defendants

[2021] IEHC 825

[2019 No. 7318 P.]

THE HIGH COURT

Abuse of process – Strike out – Isaac Wunder order – Defendants seeking to strike out proceedings – Whether the proceedings were bound to fail

Facts: The defendants applied to the High Court to strike out proceedings issued by the plaintiff, Ms Scanlan, against them in 2019. With the consent of all parties, Butler J made an order removing the first defendant, Mr Gilligan, from the proceedings. The applications sought relief under O. 19, r. 28 of the Rules of the Superior Courts on the grounds that the 2019 proceedings did not disclose a reasonable cause of action against the respective defendants or that they were frivolous and vexatious. Alternatively, the applications invoked the inherent jurisdiction of the court on the grounds that the 2019 proceedings constituted an abuse of process or were bound to fail. It was a central feature of all the applications that there were other, extant proceedings taken in 2015 against the plaintiff by Grant Thornton (represented by the sixth and seventh defendants). There had been multiple interlocutory applications in the 2015 proceedings, many of them taken by the plaintiff, and all of which had resulted in judgments and orders being made against the plaintiff. The defendants argued that the 2019 proceedings sought to re-litigate issues which had already been decided against the plaintiff in the 2015 proceedings or, in a similar vein, sought to make the legal personnel who acted on behalf of Grant Thornton in the 2015 proceedings and the Grant Thornton defendants liable to her for alleged breaches of a duty of care ostensibly owed to her as the opposing party in that litigation. All of the defendants argued that the 2019 proceedings were fundamentally misconceived in that they simply did not owe the duties alleged by the plaintiff and could not be made legally liable to her in the manner in which she contended. The fourth to seventh defendants also sought an Isaac Wunder order against the plaintiff to prevent her from issuing further proceedings without leave of the High Court against the fourth to seventh defendants, against Grant Thornton and any of its partners and employees, the firm of solicitors of which the fourth and fifth defendants were partners and any of its partners and employees and any member of the bar who had acted against the plaintiff.

Held by Butler J that she would strike out the plaintiff’s proceedings as against the second and third defendants (the barristers) and the fourth and fifth defendants (the solicitors) pursuant to the court’s inherent jurisdiction on the basis that the proceedings were bound to fail and constituted an abuse of the process of the courts. She was satisfied that the claim made against Grant Thornton in the 2019 proceedings was fundamentally misconceived and doomed to fail. She would strike out the plaintiff’s claim against the sixth and seventh defendants pursuant to the inherent jurisdiction of the court. She held that there was no legal or credible factual basis for the case the plaintiff sought to make against the eighth and ninth defendants (the State). She would allow the motion brought by the State to strike out the plaintiff’s proceedings pursuant to the inherent jurisdiction of the court. She was satisfied that for the most part the claims made by the plaintiff against the Data Protection Commissioner were both bound to fail on the merits and constituted an abuse of the courts’ processes. She would allow the Commission’s motion to strike out the plaintiff’s proceedings pursuant to the inherent jurisdiction of the court.

Butler J held that a situation had been reached where to permit the plaintiff an unrestricted right to continue to litigate against Grant Thornton or its legal representatives would be unfair and oppressive to those persons and a waste of scarce court time and resources to the detriment of other litigants. Butler J made an Isaac Wunder order against the plaintiff in the terms sought by the fourth to seventh defendants save that the orders in respect of the firm of McCann Fitzgerald solicitors, its partners and employees and members of the Bar of Ireland would be limited to the firm itself and to those members of the firm and of the Bar who had acted against or were at any material time acting against the plaintiff on behalf of Grant Thornton and any of its partners or employees.

Applications granted.

JUDGMENT of Ms. Justice Butler delivered on the 21st day of December, 2021

Introduction

1 This judgment deals with a series of applications made by the defendants to strike out proceedings issued by the plaintiff against them in 2019 (“the 2019 proceedings”). All of the defendants bar one are covered by one of the four applications before the court such that the practical effect of acceding to the applications would be to strike out the 2019 proceedings in their entirety. The one defendant who is not a moving party in these applications is the first defendant who is the subject of a separate motion brought by the plaintiff to remove him from the proceedings. Whilst that motion was brought by the plaintiff on the grounds that her inability to effect service on the first defendant was holding up the prosecution of the 2019 proceedings against the other defendants, at the hearing of these applications the plaintiff accepted unequivocally that the first defendant was not liable to her in the manner contended for and that it was a mistake on her part to have sued him. On that basis and with the consent of all parties, I made an order removing the first defendant from the proceedings.

2 The applications seek relief under O. 19, r. 28 of the Rules of the Superior Courts on the grounds that the 2019 proceedings do not disclose a reasonable cause of action against the respective defendants or that they are frivolous and vexatious. Alternatively, the applications invoke the inherent jurisdiction of the court on the grounds that the 2019 proceedings constitute an abuse of process or are bound to fail. The grounds advanced in support of both of these reliefs are very similar and vary to a limited extent dependent on the identity of the moving parties to the particular motion. However, it is a central feature of all the applications that there are other, extant proceedings taken in 2015 against the plaintiff by Grant Thornton (represented in these proceedings by the sixth and seventh defendants) (“the 2015 proceedings”). There have been multiple interlocutory applications in the 2015 proceedings, many of them taken by the plaintiff, and all of which have resulted in judgments and orders being made against the plaintiff. The defendants argue that the 2019 proceedings seek to re-litigate issues which have already been decided against the plaintiff in the 2015 proceedings or, in a similar vein, seek to make the legal personnel who acted on behalf of Grant Thornton in the 2015 proceedings and the Grant Thornton defendants liable to her for alleged breaches of a duty of care ostensibly owed to her as the opposing party in that litigation. All of the defendants argue that the 2019 proceedings are fundamentally misconceived in that they simply do not owe the duties alleged by the plaintiff and cannot be made legally liable to her in the manner in which she contends.

3 The fourth to seventh defendants also seek an Isaac Wunder order against the plaintiff to prevent her from issuing further proceedings without leave of the High Court against the fourth to seventh defendants, against Grant Thornton and any of its partners and employees, the firm of solicitors of which the fourth and fifth defendants are partners and any of its partners and employees and any member of the bar who has acted against the plaintiff. Although the motion papers do not say so, presumably the last category would necessarily be limited to members of the bar acting on behalf of Grant Thornton and instructed by the firm of solicitors. I note that a limited Isaac Wunder order has already been made against the plaintiff by Reynolds J. on 14th May, 2019 prohibiting her from issuing further motions in the 2015 proceedings without leave of the High Court. The defendants say that the plaintiff has recently breached this order by issuing a further motion in those proceedings.

4 Finally, I should note that the plaintiff has also brought a series of motions which were listed for hearing along with the applications brought by the defendants. One of these, which I have already referred to, sought the removal of the first defendant from the proceedings. The others sought the joinder of additional parties to the proceedings, the transfer of the proceedings to the jury list and to “ update” the statement of claim to reflect court decisions made and judgments delivered since it was filed. I deferred consideration of these motions as, logically, the joinder of additional parties and the updating of pleadings will not arise if the 2019 proceedings are struck out.

5 This is necessarily just an overview of the applications and I will look in more detail at the arguments made by the defendants and the plaintiff's reply when considering each application. It is, however, worth observing at the outset that the underlying issues of concern to both Grant Thornton and the plaintiff have already given rise to a series of complaints to the Data Protection Commission (and an outstanding appeal to this Court from at least one of the Commission's decisions) and five sets of legal proceedings. These proceedings in turn have generated five reserved judgments, three of the High Court (together with an additional...