Lavery v Humphreys and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 19 May 2023
• Neutral Citation: [2023] IEHC 266
• Court: High Court
• Docket Number: [2022 176 P]

Between

Joseph Lavery

Plaintiff

and

Richard Humphreys,

James Faughan,

John Francis Alymer,

Rory Hayden,

Joseph Smith,

Brian O'Callaghan,

Francis Comerford,

Alan Mitchell,

Ireland, The Attorney General and The Minister for Justice and Equality, and Nora Rafferty,

Martin Cosgrove,

Cian O'Brien,

The Commissioner of an Garda Siochana,

The Director of Public Prosecutions,

The Courts Service of Ireland,

Start Mortgages DAC.

Defendants

[2023] IEHC 266

[2022 176 P]

THE HIGH COURT

Constitutional rights – Frivolous and vexatious proceedings – Isaac Wunder order – Defendants seeking orders striking out or dismissing the proceedings – Whether the proceedings were frivolous and vexatious

Facts: The plaintiff, Mr Lavery, sought a declaration that his constitutional rights were denied due to being the victim of unconstitutional court summonses. The essence of the claim made by the plaintiff was that he was “immune to court summonses” and “immune to court orders”. The basis upon which that proposition was advanced was that the plaintiff was immune to court orders and court summonses because of the equality provisions of domestic and European law, which apply because everybody is immune from court orders and court summonses. The defendants sought orders striking out or dismissing the proceedings on the grounds that the proceedings had been issued in breach of an order of the 4th of July 2016 which prohibited the plaintiff from bringing proceedings without leave of the High Court. In the alternative, the defendants sought that the proceedings be struck out or dismissed on the grounds that they were frivolous and vexatious, or failed to disclose any legitimate cause of action, or were bound to fail.

Held by the Court that there was no reason to believe that the order of the 4th of July 2016 was set aside or varied in any way. The Court found that the order was broad in its terms, and clearly prohibited the plaintiff (without leave of the Court) from issuing the proceedings. The Court found that there was no evidence that the plaintiff obtained the leave of any judge of the Court permitting him to institute the proceedings. On the contrary, the evidence before the Court suggested that no leave had been sought, let alone granted, in respect of the action. The Court held that given that the proceedings were issued in breach of an order of the Court, the dismissal of the proceedings would be justified by that reason alone, distinguishing Kenny v Trinity College Dublin [2008] IEHC 320. The Court noted that the plaintiff had not denied the making of the Isaac Wunder order in July 2016, had never claimed that he was unaware of the order at the time the proceedings were issued, and had in no way sought to suggest that the proceedings were not caught by the Isaac Wunder order. The Court noted that the proposition underpinning the proceedings had been considered and rejected in a number of judgments of the Court: (i) Fennell v Collins [2019] IEHC 572; (ii) Keary v PRA [2022] IEHC 28; (iii) Towey v Government of Ireland [2022] IEHC 559; (iv) Mullaney v Danske Bank [2023] IEHC 62; (v) Brennan v Ireland [2023] IEHC 107; (vi) Mullins v Ireland [2022] 2022 IEHC 296; and (vii) O’Hara v Ireland (delivered on the 19th of May 2023). The Court noted that in each of those judgments, a similar rationale was applied in finding that these sort of proceedings are simply unstateable. The Court held that actions such as these are bound to fail; they are frivolous and vexatious. On the basis of those authorities, and the analysis contained in each of them, the Court found that the proceedings could not succeed, and for that reason, must be struck out.

The Court dismissed the proceedings on the grounds that they were issued in breach of an Isaac Wunder order made against the plaintiff. The Court also dismissed the proceedings on the basis that they constituted an abuse of process of the Court in that they were bound to fail, disclosed no legitimate cause of action, and were frivolous and vexatious.

Proceedings dismissed.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 19 ^th day of May 2023

1 . This is my judgment on motions brought by the thirteenth Defendant, the eighteenth Defendant, and the balance of the Defendants. There were three motions in total. All motions seek broadly similar reliefs. The Defendants seek orders striking out or dismissing the proceedings on the grounds that these proceedings had been issued in breach of an order of the 4 ^th of July 2016 which prohibited the Plaintiff from bringing proceedings without leave of the court. In the alternative, the Defendants seek that the proceedings be struck out or dismissed on the grounds that they are frivolous and vexatious, or fail to disclose any legitimate cause of action, or are bound to fail.

2 . The only pleading delivered by the Plaintiff in these proceedings was the Plenary Summons. He has not delivered any Statement of Claim.

3 . The Plenary Summons commences:-

“The Plaintiff seeks a Declaration from the Honourable Court that his Constitutional Rights were denied due to being the victim of unconstitutional court summonses. Like ex – Justice Minister Mr. Charlie Flanagan and ex – Attorney General, and Supreme Court Judge Mr. Seamus Woulfe, who ignored High Court summons number 2018/9410 P I too am immune to court summonses, that equality is guaranteed under Article 40.1 of the Irish Constitution and Article 2 of the Treaty of Europe.

The Plaintiff seeks a Declaration from the Honourable Court that his Constitutional Rights have been denied as the Plaintiff is aware of how the Director of Public Prosecutions failed to comply with Mr. Justice Gilligan's High Court order no. 2006/1114 P issued on 14 ^th day of May 2007 and like the Director of Public Prosecutions, the Plaintiff is immune to court orders, particularly the following….”

4 . A series of court orders are then listed and described. The general indorsement of claim to the Summons concludes:-

“That Equality was guaranteed under Article 40.1 of the Irish Constitution and by Article 2 of the Treaty of Europe.

The Plaintiff will provide a detailed statement of claim and reserves the right to provide additional evidence as it becomes known.

The Plaintiff's claim for damages is €2 million Euro's”.

5 . The balance of this judgment is structured under the following headings:-

1) The non – appearance by the Plaintiff at the hearing of the motion;

2) The Isaac Wunder order;

3) The legitimacy of the case made by the Plaintiff.

The non – appearance by the Plaintiff at the hearing of the motion

6 . This motion was listed for hearing on the 16 ^th day of March 2023. I was satisfied, on the affidavits of service made available to me, that the Plaintiff (Mr. Lavery) was aware of this listing. Mr. Lavery's knowledge that the motions were due to be heard on that day of March is put beyond doubt by communication received from him by way of email in advance of the hearing. That email read as follows:-

“Due to injuries, I received from a fall on 15 ^th January I have not yet regained the use of my right hand and I have temporary limited mobility. Accordingly, I am presently unable to prepare a Counter Motion and Affidavit, filed in the Central Office of the High Court and serve them on the Defendants. I am also attaching a sick note/cert that I obtained from my physician up to 22 ^nd March 2023, two days after I have a CT wrist RT (attached), which will determine if I need surgery to my right hand. It is not possible for me to attend the High Court on 16 ^th March 2023.

It is also imperative before this case proceeds in the High Court that I be permitted time to make sworn criminal complaints to the Gardai in relation to perjury in the affidavit of Martin Cosgrove sworn on the 16 ^th of January 2023, perjury in the affidavit of Peter Clifford sworn on the 27 ^th February 2023, and of perjury in the affidavit of Aidan McCarthy sworn on 9 ^th March 2023, all related to this case.

I believe that it is also of interest that I originally served the plenary summons of Martin Cosgrove, A.B. O'Reilly Dolan & Co. at 27 Bridge Street, Cootehill, Co. Cavan at 12:53 p.m. on 20 ^th of January 2022 and service of the summons was accepted by Anne Cooney. Mr. Cosgrove has since attempted to frustrate proceedings, now he has resorted to perjury.

The High Court has already ruled in favour of the Plaintiff in Constitutional case number 2021/2308 P which relies on the same Case Law as my High Court Constitutional case no. 2022/176 P. This means that my identical constitutional case no. 2022/176 P is won also”.

7 . A “sick cert” was enclosed which stated that Mr....