Kinsella v Cooney

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 July 2017
• Neutral Citation: [2017] IEHC 450
• Docket Number: 2016 No. 2979P
• Court: High Court
• Date: 11 July 2017

[2017] IEHC 450

THE HIGH COURT

Barrett J.

2016 No. 2979P

BETWEEN:

LEONARD KINSELLA

Plaintiff

– and –

SHEILA COONEY, PADRAIC BRADY, DEIRDRE MORAN, BRENDA RUSHE

and

MAIREAD O'REILLY PRACTISING UNDER THE STYLE

AND

TITLE OF TALLANS SOLICITORS

Defendants

Practice & Procedures – O.19, r.28 of the Rules of Superior Court (RSC) – Striking out of Claims – Inherent Jurisdiction – Vexatious Pleading

Facts: The defendants sought an order pursuant to o.19, r.28 of the RSC for striking out the plaintiff's statement of claim and dismissing the plaintiff's claim on the ground that the said claim disclosed no reasonable cause of action, was premature, vexatious and designed to embarrass the defendants. The plaintiff contended that the defendants had breached their undertaking by failing to make the payment of the amount it owed to the plaintiff. The defendants contended that they were merely representing their client and sent the letter on behalf of their client. The issue arose as to whether the Court was bound to make an order in favour of the defendants in exercise of its inherent jurisdiction.

Mr. Justice Max Barrett declined the application of the defendants. The Court held that a reasonable and justiciable cause of action was disclosed on the face of the pleadings. The Court held that there was nothing in the defendants' claim that compelled the Court to apply its inherent jurisdiction.

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2017.

I. Background

1 A solicitor's undertaking is an unequivocal declaration of intention addressed to someone who reasonably places reliance upon it, which is made either personally by a solicitor or by a member of her staff, in either case acting in the course of the solicitor's practice, whereby the solicitor (as solicitor or employer) becomes personally bound. This case concerns the solicitor's undertaking given by Patrick Tallan & Co., Solicitors, in a letter of 29th April, 2008, the substance of which is set out below:

‘ Re: Our Client: George McCarron

Your Client: Leonard Kinsella

Dear Sirs,

[1] We confirm that we have been irrevocably appointed by Mr McCarron in relation to the sale [of]…the property comprised in Folio 13061F of the Register County Louth.

[2] We confirm that there is a contract subject to planning for the portion “B” on the map attached hereto, being part of Folio LH13061F.

[3] We hereby confirm that the remaining lands in Folio LH13061F other than the portion edged red and marked “B” on the map attached hereto are the subject-matter of an option agreement by the Purchasers of portion “B” for €1,500,000.

[4] In consideration of you releasing your lien on Land Certificate 1750F of the Register County Louth we hereby undertake to discharge the sum due and owing to your client in the amount of €190,460.71 plus your legal costs as agreed, or in default of agreement duly taxed out of the proceeds of sale from the remaining land in Folio LH13061F which property contains .386 hectares or thereabouts statute measure.

Yours faithfully,

PATRICK TALLAN & CO.’

2 It is agreed between the parties that the planning permission referred to at [2] was never granted and that the option referred to at [3] was never exercised. Counsel for the defendants maintains that the undertaking at [4] was conditional on [2] and [3] occurring, that they did not occur, and that the undertaking therefore ceases to have any effect. Counsel for Mr Kinsella maintains that the release of lien referred to at [4] did in fact occur, that the €190k+ therefore falls to be paid, and that the requirement of such payment is reflective of a broader indebtedness on the part of the late Mr McCarron and does not fall to be viewed solely in the context of the land-sale contemplated in the above-quoted letter, but never, it seems, effected.

3 Mr Kinsella has now commenced the within proceedings claiming (a) a declaration that the defendants are in breach of the undertaking given on or about 29th April, 2008, (b) damages for breach of the said undertaking and/or misrepresentation and/or breach of contract in the amount of €190,460.71, and (c) certain ancillary reliefs. A full defence has been delivered, the essential components being that (i) Mr Kinsella's claim is statute-barred, (ii) the letter of 29th April, 2008, did not constitute a warranty, representation, etc., as alleged or at all, (iii) the letter of 29th April, 2008, was given only on behalf of Mr McCarron and not by or on behalf of his solicitors, (iv) the claim should be brought against the estate of Mr McCarron and so is premature, vexatious and an abuse of process, and (v) the plaintiff has not mitigated any (if any) loss suffered.

4 By notice of motion of 8th October, 2016, the defendants have brought the within application seeking the following and certain other ancillary reliefs:

‘1. An order pursuant to Order 19 rule 28 of the Rules of the Superior Court 1986 striking out the Plaintiff's statement of claim herein and dismissing the Plaintiff's claim on the grounds that the said statement of claim discloses no reasonable cause of action, is premature, vexatious and designed to embarrass the Defendants.

2. An order pursuant to the inherent jurisdiction of the court striking out the Plaintiff's statement of claim herein and dismissing the Plaintiff's claim on the grounds that the said claim discloses no reasonable cause of action, is premature, vexatious, designed to embarrass and that a dismissal is just and equitable in the circumstances.’

II. Applicable Law

(i) O.19, r.28.

II. Applicable Law

5 Order 19, rule 28 of the Rules of the Superior Courts (1986), as amended, provides as follows:

‘The court...