Gilroy v Callanan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hunt |
| Judgment Date | 11 January 2019 |
| Neutral Citation | [2019] IEHC 480 |
| Court | High Court |
| Docket Number | 2017 No. 8012 P. |
| Date | 11 January 2019 |
[2019] IEHC 480
THE HIGH COURT
Hunt J.
2017 No. 8012 P.
Damages – Trespass – Frivolous and vexatious claims – Defendants seeking an order an order dismissing the plaintiff’s claim as frivolous, vexatious and/or disclosing no cause of action – Whether the claims identified in the plenary summons and statement of claim were bound to fail
Facts: The plaintiff, Mr Gilroy, issued a plenary summons against the defendants, Ms Callanan, Allied Irish Banks plc, Beauchamps Solicitors, Mr Butler, Ms McLaughlin and Mr Bergin, on the 5th September, 2017. The relief claimed in the plenary summons against all defendants was set out as follows: (a) damages for trespass, trespass on the case and wrongful actions damages which are continuing and accruing; (b) damages for loss of reputation and good name damages which are continuing and accruing; (c) damages for negligence and malfeasance damages which are continuing and accruing; (d) damages for stress and anxiety damages which are continuing and accruing; (e) damages for tort (negligence) damages which are continuing and accruing; (f) damages for abusing and violating the rights of the plaintiff, which are continuing and accruing; (g) punitive damages; (h) actual damages which are continuing and accruing; (i) costs; and (j) any such other order as the court deems fit. The defendants sought the following orders: (1) an order dismissing the plaintiff’s claim as frivolous, vexatious and/or disclosing no cause of action, pursuant to Order 19, Rule 28 of the Rules of the Superior Courts (RSC) and/or pursuant to the inherent jurisdiction of the High Court as being unsustainable and/or bound to fail; (2) an order dismissing the plaintiff’s claim as being unnecessary, scandalous or as tending to embarrass or delay pursuant to Order 19, Rule 27 RSC; (3) an order dismissing the plaintiff’s claim as an abuse of process pursuant to the inherent jurisdiction of the High Court; (4) an order restraining the plaintiff from issuing further proceedings against the defendants, save with the prior permission of the High Court; (5) an order restraining the plaintiff from participating and assisting or otherwise engaging in litigation whether in the capacity of “McKenzie Friend” or otherwise.
Held by Hunt J that, on the basis of the case as pleaded, and assuming proof of all factual matters set out therein, all claims identified in the plenary summons and statement of claim were bound to fail and, therefore, must be dismissed as being “frivolous and vexatious” within the legal sense of that term.
Hunt J held that there would be an order dismissing the plaintiff’s claims against each of the defendants pursuant to the provisions of Order 19, Rule 28 RSC.
Order granted.
The plaintiff in this case is a self-represented litigant. He issued a plenary summons against the defendants on the 5th September, 2017. The general indorsement of claim contains 12 paragraphs. The plaintiff's complaints against all of the defendants originate in the assertion pleaded in paragraph 2. The plaintiff claims that the first-named defendant, who is a practicing solicitor and partner in the third-named defendant firm, wrongly and without proper authority joined the plaintiff as a defendant to proceedings between Allied Irish Banks Plc v. Seamus McQuaid, Record No. 2016/1920S and COM CT 2016/133, months after the trial of that action. I will refer to this as ‘the McQuaid litigation’. In addition, paragraph 5 alleges that the first-named defendant acted in the McQuaid litigation on the instructions of the fourth-named defendant ‘knowing no such authority to bind the party to bring such an application existed, thus being a tortious act and did abuse and flagrantly violated ‘his rights’.’
In the McQuaid litigation, the plaintiff bank was represented by the third-named defendant firm. It appears that the first-named defendant solicitor was primarily responsible for the conduct of that litigation by that firm on behalf of the plaintiff bank. The fourth-named defendant is an employee of that bank, and the fifth and sixth named defendants are sued as company secretaries of the bank.
The plaintiff's complaint against second-named defendant bank is based in paragraph 3 of the indorsement of claim. It is asserted that the second-named defendant ‘did egregiously trespass against the plaintiff and his rights, or in the alternative sat by and allowed an employee, with no authority, egregiously trespass against the plaintiff and his rights, in the name of Allied Irish Banks plc.,….’ The face of the summons shows that in respect of these complaints, the plaintiff elected to sue ‘ Allied Irish Banks plc of Bank Centre, Ballsbridge, Dublin 4’.
The plaintiff's claim against the fourth-named defendant is based in paragraph 5 of the indorsement of claim. This alleges that ‘ The fourth named defendant did instruct the first and third named defendants to take committal proceedings against the plaintiff in (the McQuaid litigation). He did so in the name of the second named defendant, without any authority to bind the second named defendant to his actions.’ Paragraph 6 of the indorsement of claim contains a further allegation against the fourth-named defendant, namely that ‘ the fourth named defendant did ground such an application, by way of affidavit, the said committal proceedings, without any proper authority being a tortious act, …’.
The claim against the third-named defendant is set out at paragraph 4 of the indorsement of claim. This asserts that ‘ the third named defendants did permit a partner in their firm, namely the first named defendant, egregiously trespass against the plaintiff, causing him harm, loss of reputation and good name and ultimately defamed him and flagrantly violated his rights without any proper authority or instructions from their clients, did join the plaintiff as a defendant to ‘the action’ (the McQuaid litigation) same being a tortious act’. In addition, paragraph 5 alleges that this defendant acted on the instructions of the fourth-named defendant ‘ knowing no such authority to bind the party to bring such an application existed, thus being a tortious act and did abuse and flagrantly violated ‘his rights’.’
The case against the fifth and sixth named defendants is set out at paragraphs 8 to 10 of the indorsement of claim. Paragraph 8 asserts that at all material times, the fifth and sixth named defendants ‘ were acting as company secretaries for the second named defendant. Some of their duties would and must include the recording of the minutes of the AGM's and other general meetings and board meetings, and maintaining the company's minute books.’
Paragraph 9 claims that these defendants ‘ knew or in the alternative ought to have known, that the instructions to attach the plaintiff as a defendant to ‘the action’, were not properly approved by the board, if approved at all, but were in fact instituted by rogue employees and/or rogue solicitors. Such action did abuse and flagrantly violated the plaintiff's rights.’
Paragraph 10 alleges in the alternative that if the actions of these defendants were, in fact, approved by the board of the second-named defendant bank, then the instructions to join the plaintiff to the above-recited proceedings ‘ should have been an initiated by registered persons in the company registration office as required by law. In any event the said proceedings to attach the plaintiff months after the trial of the action ‘was a tortious act’ which flagrantly violated his rights, and then resulted in an egregious trespass against the plaintiff causing him harm, loss of reputation and good name and ultimately defamed and endangered him.’
Paragraph 7, 11 and 12 of the indorsement of claim apply to all of the defendants. Paragraph 7 claims that ‘ all defendants knew or in the alternative ought to have known that the applications brought against the plaintiff, were brought without any proper authority to bind the second named defendant to such action, as required by statute and European law.’ Paragraph 11 asserts that ‘irrespective who initiated (sic) the ill-founded joining of the plaintiff to ‘the action’, all defendants knew or in the alternative ought to have known, that any proceedings to attach a defendant months after the trial of ‘the action’ was a tortious and grossly negligent act which did abuse and flagrantly violated ‘his rights’.’ The latter allegation is repeated in paragraph 12 in relation to ‘ a further application to the jail the plaintiff’.
Based on the foregoing matters, the relief claimed in the plenary summons against all defendants is set out as follows:-
‘(a) Damages for trespass, trespass on the case and wrongful actions damages which are continuing and accruing
(b) Damages for loss of reputation and good name damages which are continuing and accruing
(c) Damages for negligence and malfeasance damages which are continuing and accruing
(d) Damages for stress and anxiety damages which are continuing and accruing
(e) Damages for tort (negligence) damages which are continuing and accruing
(f) Damages for abusing and violating the rights of the plaintiff, which are continuing and accruing.
(g) Punitive damages
(h) Actual damages which are continuing and accruing.
(i) Costs
(j) And any such other order as the court deems fit.’
It is readily apparent from a perusal of the general indorsement of claim that this plenary summons was issued as part of a broader context of previous interaction between the plaintiff and the defendants sued by him in these proceedings. That context is comprehensively...
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