Leahy v Circuit Court Judge
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 18 January 2023 |
| Neutral Citation | [2023] IECA 6 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2021/206 |
and
and
[2023] IECA 6
Costello J.
Binchy J.
Allen J.
Appeal Number: 2021/206
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr. Justice Allen delivered on the 18 th day of January, 2023
. This is an appeal by Mr. Michael Leahy, who represents himself, against a judgment and order of the High Court (Hyland J.) by which Mr. Leahy was refused leave to apply for an order of certiorari by way of judicial review of an order made by His Honour Judge Quinn on 14 th July, 2020.
. Mr. Leahy made an ex parte application to the High Court on 14 th September, 2020 and by order of Meenan J. dated 19 th October, 2020 was directed to make his application for leave on notice to the judge and the notice parties. Mr. Leahy's ex parte application was grounded on an affidavit sworn on 14 th September, 2020 and a statements of grounds dated the same day. The order of Meenan J. allowed Mr. Leahy seven days within which to issue a motion returnable for 17 th November, 2020. He did not issue and serve his motion in time but the time was extended by further orders of Meenan J. made on 23 rd November, 2020 and 14 th December, 2020 and the motion was eventually issued on 22 nd December, 2020, returnable for 26 th January, 2021.
. On 28 th September, 2018 in proceedings entitled Record No. 2010/EJ003, The Circuit Court, South Eastern Circuit, County of Waterford, Between: Michael Doyle, Plaintiff and Michael Leahy Trading as Ideal Kitchens, Defendant, Mr. Doyle recovered judgment against Mr. Leahy in the sum of €29,796.00 and costs.
. In the course of that action Mr. Leahy produced to the Circuit Court an agreement dated 4 th September, 2018 which had been made between the first notice party, Tippo International Limited (“Tippo”) and Mr. Leahy by which Tippo had agreed to pay to Mr. Leahy a total sum of €550,000 by way of an initial instalment of €100,000 to be paid on 8 th October, 2018, eight consecutive monthly instalments of €50,000 on the 8 th day of each month commencing on 8 th November, 2018 and a final instalment of €40,000 to take into account a contribution to the costs of a mediation in the course of which the agreement had been reached. The settlement agreement between Tippo and Mr. Leahy was made in full and final settlement of all claims howsoever arising but referred in particular to High Court proceedings Record No. 2014/1623S which Mr. Leahy had brought against Tippo, which, by the terms of the settlement agreement, Mr. Leahy agreed to discontinue.
. On 6 th November, 2018, in the action in which Mr. Doyle was the plaintiff, an order was made by His Honour Judge O'Donoghue sitting at Kilkenny, on the ex parte application of Mr. Doyle, directing the payment into court of the sum of €29,796.00 for the amount of the judgment which Mr. Doyle had recovered and a sum of €20,000 in respect of costs, pending the outcome of Mr. Leahy's appeal against the order of 28 th September, 2018. The order was made “In respect of any monies which [Mr. Leahy] will recover in an action entitled The High Court, Michael Leahy v. Tippo International Limited Record No. 2014/1623S”. The order provided for service on Anderson & Gallagher, solicitors for Tippo, but not, expressly, for service on Mr. Leahy. However, on the following day, 7 th November, 2018, Anderson & Gallagher wrote to Mr. Leahy to say that Tippo would comply with the order and pay the balance of €204.00 of the instalment of €50,000.00 which would become due on 8 th November, 2018 into his account.
. On 28 th March, 2019 Mr. Leahy's appeal to the High Court against the judgment and order of 28 th September, 2018 in favour of Mr. Doyle was dismissed, with costs. Mr Leahy did not appeal the order of His Honour Judge O'Donoghue of 6 th November, 2018, which remains in effect.
. On 30 th May, 2019 Mr. Doyle applied to the Circuit Court (Her Honour Judge Doyle) sitting in Dungarvan and obtained an interim order freezing the remaining payments due from Tippo to Mr. Leahy. That order provided that notice of the making of the order should be given to Tippo and Tippo's solicitors, Anderson & Gallagher, and gave liberty to Mr. Doyle to issue and serve a motion returnable for 4 th June, 2019. Such a motion was duly issued and appears to have been adjourned from time to time with the interim freezing order continued.
. By my reckoning, the effect of the order of 30 th May, 2019 was to freeze the payment of the two last instalments payable on foot of the settlement agreement which became due on 8 th June, 2019 and 8 th July, 2019, amounting together to €90,000. According to a letter written by Mr. Doyle's solicitors on 26 th June, 2019, there was then €90,000 “still due” to Mr. Doyle. It is not evident what, if any, account was taken of the money paid into court. All the appearances are that the €49,796 which was paid into court by Tippo on 26 th November, 2019 remains in court.
. By ordinary civil bill issued on 5 th March, 2020 Mr. Leahy commenced proceedings against Tippo and Anderson & Gallagher claiming a declaration that Tippo did not have the authority to “redirect” the payment of €49,796.00 due to Mr. Leahy on 8 th October, 2018; an order directing the Kilkenny Circuit Court Office to release the funds said to have been wrongfully paid by Tippo on 21 st October, 2018 “under pretence to” the order of 6 th October, 2018; and damages for loss.
. The indorsement of claim refers to an order of 6 th October, 2018 and a payment into court on 21 st October, 2018 but both dates were obviously mistaken. The order of Judge O'Donoghue for the payment of monies into court was made on 6 th November, 2018, not 6 th October, 2018. The first payment of €100,000 on foot of the settlement agreement which fell due on 8 th October, 2018 was paid to Mr. Leahy and the monies paid into court – which were paid in on 26 th November, 2018 – were deducted from the instalment of €50,000 which fell due on 8 th November, 2018. However, nothing turns on the precise dates.
. The premise of Mr. Leahy's claim was that he had not recovered any monies in his 2014 action against Tippo and that the order of 6 th November, 2018 had not authorised Tippo to pay into court monies which were due to Mr. Leahy on foot of the settlement agreement of 4 th September, 2018. The case made by Mr. Leahy was that “it was reasonable to say” that Tippo knew or ought to have known that the order of 6 th November, 2018 did not authorise it to “redirect €49,769.00 due to [Mr. Leahy] to court for the benefit of [Mr. Doyle]” and that “it was reasonable to say” that Anderson & Gallagher had been negligent in advising Tippo to do so.
. By notice of motion dated 15 th June, 2020 and returnable for 8 th July, 2020 Anderson & Gallagher applied to the Circuit Court at Kilkenny for an order dismissing the action against them on the grounds that it failed to disclose a cause of action. That motion was grounded on an affidavit of Mr. Noel Gallagher, solicitor, sworn on 12 th June, 2020. Mr. Gallagher identified the basis of Mr. Leahy's claim as being an attempt to distinguish between monies paid on foot of the proceedings which he had brought against Tippo and the monies payable on foot of the mediated settlement. That distinction, he suggested, was without foundation and Tippo, he suggested, had had no option but to pay the monies into court as directed by the order of 6 th November, 2018. Mr. Gallagher suggested that if Mr. Leahy had had a problem with the order he could have appealed it but had not. As to the action against Anderson & Gallagher, Mr. Gallagher suggested that there was no contractual nexus between Mr. Leahy and the solicitors and that the solicitors owed Mr. Leahy no duty of care.
. Mr. Gallagher exhibited a copy letter which had been sent to Mr. Leahy on 26 th March, 2020 inviting him to discontinue the action and a copy of Mr. Leahy's reply. The reply is dated 26 th March, 2018 but this is clearly a mistake. Mr. Gallagher's letter, having set out the defendants' stall, indicated that if the proceedings were not discontinued a defence would be delivered. Mr. Leahy, in his reply, contested what Mr. Gallagher had said and gave his consent to the late delivery of a defence within ten days.
. On 23 rd June, 2020 a separate motion was issued on behalf of Tippo seeking to have the action against it dismissed as disclosing no reasonable cause of action and/or on the grounds that it was frivolous and vexatious. That motion, which was also made returnable for 8 th July, 2020 at Kilkenny, was grounded on an affidavit of Mr. Patrick Martin, a director of Tippo. Mr. Martin set out the background to Mr. Leahy's claim which he identified as being, in a nutshell, that Tippo had wrongfully paid monies into court and that Anderson & Gallagher had been negligent in advising it to do so. Mr. Martin suggested that if Mr. Leahy was dissatisfied with the order of 6 th November, 2018 the appropriate course of action was an appeal and he characterised the new action as a frivolous and vexatious attempt to circumvent that order. He suggested that Mr. Leahy's argument that there was a distinction to be drawn between monies paid on foot of his High Court proceedings against Tippo and monies paid on foot of the settlement agreement was without merit. Mr. Martin suggested that Tippo had simply complied with a Circuit Court order and that Mr. Leahy could have no cause of action against it.
. On 29 th June, 2020 Mr. Leahy issued a motion by which he sought judgment in default of defence and an order directing the payment out of the sum of €49,769. That motion was also initially returnable...
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