Kirwan v Marguerite Connors

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 26 October 2022
• Neutral Citation: [2022] IECA 242
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/486 Record Number: 2020/14 Record Number: 2019/485 High Court No. 2012/2995S

Between/

Brendan Kirwan

Plaintiff/Appellant

and

Marguerite Connors Trading Under The Style of MJ O'Connor Solicitors, MJ O'Connor Solicitors, Eamonn Buttle, Filbeck Limited, Norman Buttle, Mary Buttle, Hilary Buttle, John O'Leary Trading Under The Style of MJ O'Connor Solicitors, Brid O'Leary Trading Under The Style of MJ O'Connor Solicitors

Defendants/Respondents

Between/

Brendan Kirwan

Plaintiff/Appellant

and

Marguerite Connors Trading Under The Style of MJ O'Connor Solicitors, MJ O'Connor Solicitors, Eamonn Buttle, Filbeck Limited, Norman Buttle, Mary Buttle, Hilary Buttle, John O'Leary Trading Under The Style of MJ O'Connor Solicitors, Brid O'Leary Trading Under The Style of MJ O'Connor Solicitors

Defendants/Respondents

Between/

Brendan Kirwan

Plaintiff/Appellant

and

Eamonn Buttle

Defendant/Respondent

[2022] IECA 242

Woulfe J.

Power J.

Binchy J.

Record Number: 2019/486

High Court No. 2013/5514P

Record Number: 2020/14

High Court No. 2013/5514P

Record Number: 2019/485

High Court No. 2012/2995S

THE COURT OF APPEAL

CIVIL

Inordinate and inexcusable delay – Errors in law – Denial of due process – Appellant appealing against an order dismissing combined proceedings on the grounds of inordinate and inexcusable delay – Whether the judge erred in law and in fact and denied the appellant due process

Facts: The appellant, Mr Kirwan, appealed to the Court of Appeal against three orders made by the High Court (Meenan J). The first appeal was against the order of 23 October 2019 dismissing the 2013 combined proceedings on the grounds of inordinate and inexcusable delay. The appellant submitted that the High Court judge erred in law and in fact and denied the appellant due process by allowing, inter alia, the defendants to have misled the court by way of false claims, perjury, hearsay, the production of false documents and the deliberate breaking of ‘the solicitors acts’. The second appeal was against the order of 17 December 2019 made under the ‘slip rule’ wherein the judge amended the 23 October order made in the 2013 combined proceedings so as to reflect, more accurately, his judgment in the matter. The appellant submitted that, as well as the errors in law and fact and the denial of due process, there were wilful and wanton acts that occurred which defrauded the State of mandatory stamp duty. The third appeal was against the order of 23 October 2019 reinstating a motion to dismiss the 2012 proceedings on the grounds that they were frivolous and vexatious and, thereafter, granting the relief sought on foot of that motion. The appellant submitted that the trial judge had refused to hear his motion to set aside the judgment obtained in the 2011 creditor action and this amounted to an infringement of his right to a fair hearing.

Held by Power J that, regarding the first appeal, however one approaches the question of delay in this case, the trial judge did not err in finding that the proceedings should be dismissed given the passage of time since the events in question and the consequent prejudice caused to the respondents. Power J held that the delay was both inordinate and inexcusable and the balance of justice favoured the discontinuation of proceedings. Power J held that it would be unfair to the respondents to allow the proceedings which related to events back in 2006 to remain live notwithstanding the appellant’s abject failure to move matters on since 2013. Power J held that the trial judge’s decision could not be impugned. Therefore, Power J dismissed the first appeal. Regarding the second appeal, Power J held that the High Court judge’s decision of 17 December 2019 to amend his earlier order of 23 October 2019 in order to correct errors identified on the face of that earlier order could not be impugned. Therefore, Power J dismissed the second appeal. Regarding the third appeal, Power J was satisfied that the trial judge did not err in his decision to strike out the 2012 claim as an order that was consequential upon his order in the 2013 proceedings. Therefore, Power J dismissed the third appeal.

Power J made an order awarding the costs of the three appeals to the respondents on a provisional basis.

Appeals dismissed.

JUDGMENT of Ms. Justice Power delivered on the 26th day of October 2022

TABLE OF CONTENTS

	Page
Introduction	4
➢ Orders Under Appeal	5
➢ The Disputed Property Transaction	5
The Litigation	6
➢ The 2011 ‘Creditor’ Action	6
➢ The 2012 ‘Buttle’ Action	7
➢ The 2013 ‘Combined’ Action	8
➢ Subsequent Procedural Steps	8
The High Court Judgment	9
Subsequent Applications and Hearings	13
➢ Mr Kirwan's Application to Correct Alleged Errors	13
➢ The 23 October 2019 Hearing	14
➢ The Defendants' ‘Slip Rule’ Application	16
➢ Decision on ‘Slip Rule’ Application	16
The Appeals	17
The First Appeal	17
➢ Grounds	17
➢ Response	19
Legal Principles on Delay	19
➢ The ‘ Primor’ Test	20
➢ Factors in Assessing the Balance of Justice	20
Discussion	23
➢ A Necessary Clarification	23
➢ The Nature of a Motion to Dismiss	25
➢ Inordinate Delay: Submissions	27
➢ The Court's Assessment	30
➢ Inexcusable Delay: Submissions	31
➢ The Court's Assessment	33
➢ The Balance of Justice: Submissions	34
➢ The Court's Assessment	37
➢ Prejudice	37
➢ Reputational Damage	38
➢ Respondents' Conduct	39
➢ Lay Litigant Status	40
➢ Other Errors Alleged	41
Conclusion on First Appeal	42
The Second Appeal	43
➢ Background	43
➢ The 17 December 2019 Hearing and Ruling	45
Legal Principles on ‘Slip Rule’ Applications	46
Discussion	47
➢ Grounds of Appeal	47
➢ Notice of Response	48
➢ The Parties' Submissions	49
➢ The Court's Assessment	50
Conclusion on Second Appeal	53
The Third Appeal	53
➢ Background	53
➢ Grounds and Submissions	56
➢ Response and Submissions	56
➢ The Court's Assessment	58
Conclusion on Third Appeal	62
Miscellaneous	62
➢ Extant Order for Judgment in the Creditor Action	62
Decision	62

Introduction

1 There are three appeals before this Court arising from interrelated High Court proceedings which were instituted in 2011, 2012 and 2013, respectively. The appellant in each appeal is Mr Kirwan and, for ease of reference, I shall refer to him throughout this judgment as Mr Kirwan or ‘the appellant’. When referring to matters as they proceeded before the High Court, I shall refer to the respondents in these appeals as the defendants.

2 For reasons which will become evident and, again, for ease of reference, I shall, from time to time, refer to the 2011 proceedings as the ‘creditor action’; the 2012 proceedings as the ‘Buttle’ proceedings; and the 2013 proceedings as the ‘combined’ proceedings. In the 2011 proceedings Mr Kirwan was the defendant. In the 2012 and the 2013 proceedings, he was the plaintiff.

3 The High Court delivered judgment in the combined proceedings on 2 September 2019. The first and second appeals herein relate to orders made by the High Court in relation to the 2013 combined proceedings following that judgment. In the High Court's view, that judgment had consequences for the 2012 ‘Buttle’ proceedings and the third appeal relates to a consequential order that was made in the 2012 proceedings by the same court and on the same day.

Orders Under Appeal

4 The three orders under appeal were made by the High Court (Meenan J.). They are:

• (i) the order of 23 October 2019 dismissing the 2013 combined proceedings on the grounds of inordinate and inexcusable delay (‘the first appeal’);

• (ii) the order of 17 December 2019 made under the ‘slip rule’ wherein the judge amended the 23 October order made in the 2013 combined proceedings so as to reflect, more accurately, his judgment in the matter (‘the second appeal’) 1; and

• (iii) the order of 23 October 2019 reinstating a motion to dismiss the 2012 proceedings on the grounds that they were frivolous and vexatious and, thereafter, granting the relief sought on foot of that motion (‘the third appeal’).

5 No appeal was brought in respect of an order made by the High Court in the 2011 proceedings wherein the High Court reinstated Mr Kirwan's motion to set aside an order entering summary judgment against him in the creditor action and, thereafter, refused to grant his application to set that order aside. 2

6 The first appeal, bearing record number 2019/486, is the core appeal. The second appeal bears record number 2020/14. The third appeal bears record number 2019/485.

7 A brief word about the unsuccessful property transaction that gave rise to the litigation outlined above may be helpful by way of context for these appeals.

The Disputed Property Transaction

8 The relevant facts, as found by Meenan J., are set out in the judgment of the High Court. Mr Kirwan was the owner of property in Wexford town, and he wished to have this property developed. To this end, negotiations between himself and Mr Buttle were conducted throughout 2005. Meenan J. noted that Mr Buttle rejected an initial proposal of Mr Kirwan's under which Mr Buttle would pay Mr Kirwan €4,000,000, comprising a €1,000,000 cash

payment, with Mr Kirwan retaining property to the value of €3,000,000 in the development, once constructed

9 An accord was eventually reached and on 5 July 2006, Mr Kirwan and Mr Buttle entered into two agreements. Under the first, Mr Buttle contracted to purchase land from Mr Kirwan subject to Mr Buttle, as purchaser, securing planning permission for the development of the land in question. Under the second, the parties entered into a loan agreement whereby Mr Buttle advanced a loan of €1,000,000 to Mr Kirwan which was to be repaid either when the aforesaid contract was terminated or when planning...