J.O'C. v G.D.

JurisdictionIreland
JudgeMr Justice David Keane
Judgment Date20 December 2017
Neutral Citation[2017] IEHC 781
Date20 December 2017
CourtHigh Court
Docket Number[2014/6262P] [2014 No.6263P]
BETWEEN
J. O'C.
PLAINTIFF
AND
G. D.

AND

J. O'C.
DEFENDANTS
BETWEEN
J. O'C.
PLAINTIFF
AND
K.W.
DEFENDANT

[2017] IEHC 781

Keane J.

[2014/6262P]

[2014 No.6263P]

THE HIGH COURT

Practice & Procedures - O. 19, r. 28 of the Rules of the Superior Courts - S. 34 of the Judicial Separation and Family Law Reform Act 1989 - Compliance with solicitors' undertaking - Costs

Facts: The parties filed three applications before the Court. The dispute arose out of family law proceedings between the plaintiff and his wife. In the first action, the plaintiff (husband) sought an order against his solicitors while in the second action the plaintiff/husband sought certain declatory reliefs against the wife's solicitor (defendant in the second named proceedings). In another application, the wife's solicitor sought an order for striking out the plaintiff/husband's action against him. The plaintiff/husband alleged that the wife's solicitor had withheld the amount of money under separation agreement that was payable to him.

Mr. Justice David Keane refused to grant the desired relief to the wife's solicitor and thus, refused to strike out the plaintiff/husband's application filed against the wife's solicitor. The Court held that the power to strike out the case should be exercised cautiously. The Court found that there should be some evidence to prove that there was failure by the plaintiff/husband to honour his commitments under the separation agreement before the wife's solicitor could justify withholding the requisite amount. The Court, however, struck out certain pleas in the statement of claim of the husband filed against the wife's solicitor, as those were irrelevant for the fair disposal of the issues between the parties. The Court held that two applications filed by the plaintiff/husband against his solicitor and the wife's solicitor respectively could not be consolidated and evidence must be tendered in relation to those applications.

JUDGMENT of Mr Justice David Keane delivered on the 20th December 2017
Introduction
1

The parties in these two related sets of proceedings have brought a raft of different interlocutory applications before the court. The plaintiff in each case is J. O'C., a litigant in person. In the first action, the defendants are the solicitors who represented J. O'C. in judicial separation proceedings. In the second action, the defendant is the solicitor who represented the wife of J. O'C. in those proceedings. For both clarity and ease of reference, I propose to refer to J. O'C. as "the husband"; the defendants in the first action ("the 6262P action") as "the husband's solicitors"; and the defendants in the second action ("the 6263P action") as "the wife's solicitors".

2

Without for one moment underestimating the importance or potential significance of this litigation for each of the parties involved, it has now reached a level of procedural complication out of all proportion to the relative simplicity of the underlying dispute.

The applications
3

The applications before the court (in the order in which each motion issued) are the following.

4

First, the application of the wife's solicitor, pursuant to a notice of motion issued on 10 March 2015, seeking an order dismissing or staying the plaintiff's action against him on one or more of seven separate grounds ("the strike out application"). Those grounds are:

(i) that it falls within the terms of Order 19, rule 28 of the Rules of the Superior Courts ("RSC") in disclosing no reasonable cause of action or in being an action shown by the pleadings to be frivolous or vexatious;

(ii) that it merits the exercise of the inherent jurisdiction of the court to dismiss or stay proceedings that are frivolous, vexatious or bound to fail;

(iii) that it falls within the terms of O. 19, r. 27 of the RSC in that the entirety of the indorsement of claim in the plenary summons and pleadings in the statement of claim comprise matters which are unnecessary or scandalous, or which may tend to prejudice or embarrass the defendant in the defence of that action;

(iv) that it merits the exercise of the inherent jurisdiction of the court to dismiss or stay proceedings that have been brought for improper, vexatious or oppressive motives, amounting to an abuse of process;

(v) that it merits the exercise of the inherent jurisdiction of the court to dismiss or stay a professional negligence action that has been brought without having first obtained appropriate expert evidence to support it, thus amounting to an abuse of process;

(vi) that it merits the exercise of the inherent jurisdiction of the court to dismiss or stay proceedings that have been brought in breach of the "in camera" rule; and

(vii) that it merits the exercise of the inherent jurisdiction of the court to dismiss or stay proceedings as an abuse of process, since the husband's complaints should more properly be addressed within the rubric of existing family law proceedings between the husband and wife brought under the Family Law (Divorce) Act 1996, entitled " The Dublin Circuit Family Court, Record No. 1574/2014, Between J. O'C., Applicant, and F. McM., Respondent."

5

Second, the application of the husband pursuant to a notice of motion issued on 31 July 2015, seeking an order in the 6262P action against the husband's solicitors, consolidating those proceedings with the 6263P action against the wife's solicitors ("the consolidation application").

6

Third, the application of the husband pursuant to a notice of motion issued on 24 November 2015, seeking an order in the 6263P action against the wife's solicitor, seeking various reliefs comprising: (i) a declaration that the wife's solicitor is in breach of the in camera rule; (ii) a declaration that a third party - a solicitor who has more recently represented the wife in the husband's divorce proceedings and who swore an affidavit on behalf of the wife's solicitor in the strike out application - is in breach of the in camera rule; (iii) a declaration that the wife's solicitor's strike out application is an abuse of process; (iv) an order for discovery; and (v) an order disallowing all of the wife's solicitor's costs incurred in the proceedings to date ("the in camera rule application").

7

Fourth, the application of the husband pursuant to a motion issued on 24 November 2015, seeking orders in the 6262P action against the husband's solicitor, broadly similar to those sought against the wife's solicitor in the third application just described. In the course of the hearing of these applications, it became apparent that, on 14 December 2015, Gilligan J adjourned the hearing of that motion to the trial of the 6262P action. For that reason, I do not propose to consider it any further here.

Background to the proceedings
8

The husband was the respondent in judicial separation proceedings brought by the wife in the Dublin Circuit Family Court under the title " F. McM. v J. O'C., Record No. 1715/2010". The husband filed his own defence in those proceedings in January 2011. The husband's solicitors were retained to represent him in July. The proceedings were scheduled for trial on 10 November of that year.

9

A pre-trial settlement meeting took place at Phoenix House, Smithfield, Dublin 7 on 7 November 2011. The husband and the husband's solicitors attended, as did the wife and the wife's solicitor. A judicial separation agreement was reached at that meeting. Its terms were reduced to writing and it was signed by the husband and the wife.

10

The Dublin Circuit Family Court granted a decree of judicial separation on 22 February 2012, together with ancillary orders in accordance with the agreed terms of separation, which terms were made a rule of court, as part of the Circuit Family Court Order made on that date.

11

Although the Circuit Court Order was not produced for the purpose of the various applications now before the court, it appears to be common case that one of the terms of the separation agreement and, hence, one of the terms of that Order was that the family home was to be transferred into the sole name of the wife on foot of a payment to the husband of €50,000 that was to have been made on or before 1 February 2012. The wife was to take over the mortgage loan on the property and indemnify the husband in respect of it.

12

It also seems to be common case that the said Order of the Circuit Court granted "liberty to apply" to both the wife and the husband.

13

The husband's solicitors plead that, under cover of a letter dated 14 February 2012, the wife's solicitor forwarded to the husband's solicitors both a deed of conveyance and a family home declaration for signature by the husband. The husband's solicitor forwarded the executed documents to the wife's solicitors on 17 May 2012.

14

In circumstances that are in issue between the parties to each of these two actions, the payment of €50,000 that the wife was required to make to the husband under both the separation agreement and the Order of the Circuit Court was not made but, rather, was retained by the wife's solicitor in his client account. A controversy arose about whether that payment represented a free-standing obligation under that agreement and Order, as the husband contends, or one subject to a condition precedent that the husband first comply with all of his various different obligations under both and, in particular, his obligations to execute a deed of waiver and to put in place a life insurance policy, which was, and remains, the position adopted by the wife's solicitor. A further controversy later arose in respect of the extent to which the husband had, in any event, complied with each of those various obligations.

15

Both the husband and, more strikingly, the wife's solicitor are conspicuously silent about when precisely payment of the €50,000 due to the husband under the...

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