Kenny v Cosgrave

• Jurisdiction: Ireland
• Judgment Date: 19 May 1926
• Date: 19 May 1926
• Docket Number: (1925. No. 14,939.)
• Court: Supreme Court (Irish Free State)

Kenny v. Cosgrave.

JOHN KENNY

and

WILLIAM T. COSGRAVE (1)

(1925. No. 14,939.)

High Court.

Supreme Court.

Practice - Striking out pleading - No reasonable cause of action disclosed - Frivolous or vexatious action - Action against President of Irish Free State - Whether sued in his public or private capacity - Action against Minister of State not maintainable - Statement of claim embarrassing and ambiguous - Order XXV, Rules 3 and 4 - Defendant sued in"public" capacity as distinguished from "representative" capacity - Order III, Rule 4 - Scope of Rule - Breach of contract by public officer - Implied warranty - Principal and agent - Contract to pay public money without authority of Parliament - Executive Council - Damages.

An action was commenced by writ directed to "William T. Cosgrave, of Government Buildings, Merrion Street, in the County of the City of Dublin, President of the Executive Council, Irish Free State." Paragraph 1 of the statement of claim set forth that the plaintiff was a building contractor, and paragraph 2 read: "The defendant is the President of the Executive Council of the Irish Free State." The statement of claim then stated that the plaintiff way carrying out a contract for the erection of certain houses when a strike was declared by certain of his workmen, and all work ceased. That the defendant, assuming to be an agent of the Executive Council, represented to plaintiff that it was vital in the interest of the said Executive Council and the stability of the Government of the Irish Free State that plaintiff should come to no compromise with the strikers, that the defendant and the Executive Council expected the plaintiff to take all necessary steps to defeat the object of the strikers and their leaders, and that the Executive Council agreed to support the plaintiff in that behalf and to indemnify him against any financial losses he might sustain by reason of the continuance and prolongation of the strike. That the defendant asserted and warranted impliedly to the plaintiff that he, the defendant, was authorised by the Executive Council to make the said representation and to agree to keep the plaintiff indemnified as aforesaid for and as the agent of the said Executive Council. That the plaintiff, upon the faith of such assertion and warranty, refused to come to any compromise with the strikers, that the strike was continued, and work remained suspended for a considerable time, and that subsequently a settlement was reached, with the consent and approval of the defendant and of the Executive Council. That plaintiff, by reason of the prolongation of the strike, incurred serious financial loss and damage. That the defendant was not authorised by the Executive Council to make the representation and agreement as their agent or at all, and that the Council had repudiated the agreement, and the plaintiff was unable to enforce the said agreement to indemnify, and had suffered damage, particulars whereof were set out.

Defendant applied for an order that the plaintiff's statement of claim be struck out under Order XXV, Rule 4, on the ground that it disclosed no reasonable cause of action; and that the plaintiff's action be dismissed under the said Order and Rule as being frivolous and vexatious.

Held by the Supreme Court, that although the statement of claim was embarrassing and ambiguous, and might be struck out upon those grounds, because it left in doubt the capacity in which it was suggested that the defendant purported to contract, the Court could not hold that it would not be possible for the plaintiff, upon the pleading as it stood, to tender evidence at the trial of some personal promise made by the defendant

that he would personally warrant whatever authority he represented himself as possessing, and the simple deletion of the second paragraph of the statement of claim would leave the claim unencumbered by any reference to the defendant's official position, and as good, or as bad, an assignment of a cause of action as it originally was.

Held also, that if the action was brought against the defendant upon a contract entered into by him in his capacity of Minister of State, dealing and dealt with as such, it was settled law since Macbeath v. Haldimand,1 T.R. 172, that he could not be made personally liable upon it.

And if the defendant could not be made personally liable for breach of a contract made by him as a public officer, it was equally clear that he could not be made personally liable upon an implied warranty, given by him as such public officer, that he had authority to make the contract.

Dunn v. Macdonald, [1897] 1 Q.B. 555, applied.

A public officer whom it is sought to make personally liable upon a contract alleged to have been made by him in his official capacity is not sued in a representative capacity within the meaning of Order III, Rule 4.

Held further, that the contract alleged would not have been enforceable against the Executive Council of the Irish Free State. The Executive Council could not promise to pay the plaintiff an indemnity out of public funds without the sanction of Parliament, and no contract to do so would be enforceable against them, nor would it be enforceable by petition of right or any analogous proceedings.

Churchward v. The Queen, L.R. 1 Q.B. 173, and Commercial Cable Co. v.Government of Newfoundland,[1916] 2 A.C. 610, applied.

As the alleged contract would have been unenforceable against the Executive Council, if the defendant as their agent had had the authority which he was assumed to have professed himself to possess, no damages could be recovered against him for the absence of the assumed power to contract for his principal.

Accordingly, held (affirming the High Court), that the writ and statement of claim disclosed no reasonable cause of action, and no suggested amendment would convert the statement of claim into a pleading which would disclose a reasonable cause of action, and accordingly the statement of claim must be struck out and the action dismissed.

Motion on Notice.

The defendant applied for an order: 1, that the plaintiff's statement of claim be struck out under Order XXV, Rule 4, on the ground that it disclosed no reasonable cause of action; 2, that the plaintiff's action be dismissed under the said Order and Rule as being frivolous and vexatious; and, 3, that the defendant be at liberty to sign judgment for his costs of defence and of the application.

The statement of claim has been summarised in the head-note, and is set out in the judgment.

The plaintiff appealed to the Supreme Court (1).

Sullivan P. :—

This is an application by the defendant that the plaintiff's statement of claim be struck out under Order XXV, Rule 4, on the ground that it discloses no reasonable cause of action; and that the action be dismissed under that rule as being frivolous and vexatious; and that the defendant be at liberty to sign judgment for his costs of his defence and of this application.

The action has been brought by the plaintiff against the defendant, who is described in the statement of claim as President of the Executive Council of the Irish Free State. The statement of claim alleges that the plaintiff, who carries on business as a building contractor under the name of John Kenny and Sons, in Harcourt Road, Dublin, entered into a contract with the Commissioners of the County Borough of Dublin in 1923 for the erection of certain houses in Marino, Clontarf, and was, during the years 1923 and 1924, engaged in the performance of this contract; that on or about the 18th June, 1924, a dispute arose between the members of two rival trade union organisations who were employed on the work, and a strike was declared; that on or about June 20th, 1924, the defendant, assuming to be the agent of the Executive Council of the Irish Free State, represented to the plaintiff that it was vital to the interest of the Executive Council and to the stability of the Government of the Irish Free State that the plaintiff should come to no compromise with the strikers in the dispute, and that the defendant and the Executive Council expected the plaintiff to do all acts and take all necessary steps to defeat the objects of the strikers and their leaders, and that the Executive Council agreed to support the plaintiff in that behalf, and indemnify him against any financial loss he might sustain by reason of the continuance of the strike; and that the defendant warranted impliedly to the plaintiff that he was authorised by the Executive Council to make the representation and to agree to keep the plaintiff indemnified, for and as the agent of the Executive Council. The statement of claim further alleges that on the faith of such assertion and warranty the plaintiff refused to come to any terms with the strikers, and the strike continued, and all work remained suspended until September 3rd, 1924, when the strike was settled, with the consent of the defendant and the Executive Council; that the plaintiff suffered a loss of £15,487 by reason of the prolongation of the strike, and that the defendant was not authorised to make the representation and agreement alleged. In these circumstances the plaintiff claims £15,487 damages against the defendant.

Mr. S. L. Brown, for the...