Leahy v OSB Group Ltd and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 07 June 2024
• Neutral Citation: [2024] IEHC 346
• Docket Number: RECORD NO. 2010 2605P

Between

Michael Leahy

Plaintiff

and

OSB Group Limited, Doellken-Kunststoffverarbeitung GmbH and Eirfoam Limited

Defendants

[2024] IEHC 346

RECORD NO. 2010 2605P

THE HIGH COURT

Judgment of Mr. Justice Conor Dignam delivered on the 7th day of June 2024

INTRODUCTION

1 This my judgment on the plaintiff's application to strike out the second and third-named defendant's defence.

2 The plaintiff had also issued other motions but it has not been necessary to determine those and this judgment is therefore limited to the strike out application.

3 That application has two limbs. The plaintiff seeks:

• (i) an Order pursuant to Order 31 Rule 21 of the Rules of the Superior Courts striking out the second and third-named defendant's Defence on the grounds that those defendants are in breach of a discovery Order made by Barniville J on the 22 ^nd October 2018; and

• (ii) an Order pursuant to Order 19 Rule 28 striking out the Defence as it discloses no reasonable cause of action or answer to the plaintiff's case and is shown by the pleadings to be frivolous and vexatious.

4 It seems to me to make more sense to deal with the second of these first.

BACKGROUND

5 It is not necessary to set out the factual background in any significant detail though it will be necessary to refer to some of the facts during the course of this judgment.

6 In or about 2003/2004, the plaintiff set about establishing a business manufacturing and selling customised laminated worktops. The first-named defendant is a provider of kitchen and furniture materials. The second-named defendant is a manufacturer and supplier of PVC, ABS, acrylic and melamine edge-banding or edgings for such worktops. This defendant is based in Germany. The third-named defendant is a distributor of kitchen and furniture materials and is the agent of the second-named defendant in the State.

7 In April 2004, the plaintiff purchased a specialised piece of manufacturing equipment known as a BAZ or IMABAZ machine to manufacture kitchen worktops.

8 The plaintiff claims that he entered into a contract with the second and third-named defendants for the supply of edgings for the manufacture and completion of the worktops and that he relied on representations made by all three defendants as to the fitness for purpose of the edgings for use in the plaintiff's manufacturing process and as to the time that it would take to match the colour of those edgings to the laminate worktops which the plaintiff was going to manufacture. He claims that these representations were made, inter alia, during a visit to the second-named defendant's factory in May 2004. He says this was a “specification meeting”. The defendants deny this and, while admitting that the visit took place, describe it as an “exploratory meeting”. This meeting is central to the plaintiff's claim. The plaintiff's case is that as events transpired, the edgings supplied by the second and third-named defendant were not fit for purpose as they could not be properly affixed without defect to the plaintiff's worktops. He also claims that the matching of edgings to the worktops was excessively slow which led to delays in the manufacturing process in 2004 and 2005. There is considerably more detail to the plaintiff's claim but it is not necessary to go into all of the detail at this stage.

9 He claims that all three defendants owed him a duty of care and acted in breach of that duty by way of negligence, negligent misstatement and misrepresentation. The plaintiff claims that he has, as a result, suffered loss and damage in the amount of €22.7 million (he originally claimed loss and damage in the amount of €6.5 million but claimed the amount of €22.7 million in an Amended Statement of Claim delivered in 2018).

10 The plaintiff issued proceedings in March 2010 and delivered a Statement of Claim in January 2011. He delivered an Amended Statement of Claim in April 2011. A Defence was delivered in October 2011. The plaintiff delivered a second Amended Statement of Claim on the 22 ^nd October 2018 (he was granted liberty to do so on consent). The second and third-named defendants delivered their Amended Defence in April 2019. The plaintiff subsequently issued a motion to deliver a further Amended Statement of Claim. However, he withdrew that application. In those circumstances, the relevant pleadings are the Amended Statement of Claim of the 22 ^nd October 2018 and the Amended Defence of the 11 ^th April 2019.

ORDER 19 RULE 28

11 The plaintiff seeks an Order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts striking out the second and third-named defendants' Defence on the grounds that it discloses no reasonable answer to the plaintiff's claim or is shown by the terms of the pleadings to be frivolous and vexatious.

12 The sole basis set out in the Notice of Motion for this application is that the pleadings do not disclose any reasonable answer or are frivolous and vexatious. The plaintiff, in the Notice of Motion, does not rely on the Court's inherent jurisdiction. I have nonetheless gone on to consider whether the plaintiff would be entitled to an Order striking out the proceedings in the exercise of the Court's inherent jurisdiction. I have done so in circumstances where the plaintiff acts in person. That is insufficient in itself to permit the Court to go beyond what is expressly stated in the Notice of Motion because to adopt such an approach would be to treat persons who are represented and those are not represented unequally. However, in this case, it was clear from the contents of the plaintiff's grounding affidavit and his replying affidavit and his oral and written submissions that he was relying on the Court's inherent jurisdiction also.

13 I am satisfied that the plaintiff must fail on this application under both jurisdictions for the following reasons.

14 Order 19 Rule 28 as it stood at the time of this motion provided, inter alia:

“ The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to stayed or dismissed, or judgment to be entered accordingly, as may be just.”

15 An application to strike out a Defence under Order 19 Rule 28 is very unusual and Orders doing so are even more rare. This is perfectly understandable when one considers the principles applying to applications under Order 19 Rule 28. These principles are very well-established and well-known and it is not necessary to set them out in any great detail.

16 It is a jurisdiction which must be exercised sparingly. The jurisdiction is exercisable on the pleadings only and the case of the party whose pleading is sought to be struck out must be taken at its height. It must be assumed that the facts contained in the pleading are true and that the party will succeed in establishing those facts. Of course, this is of particular significance in the case of an application to strike out a Defence because the Defence may be limited to straight denials and putting the plaintiff on proof of their allegations.

17 It is sufficient to refer to a number of paragraphs from Delany and McGrath on Civil Procedure, 4 ^th Ed, 2018 (to which I was referred by the second and third-named defendants). The authors state:

“ 16-05 In Aer Rianta cpt v Ryanair Ltd it was emphasised by Denham J that the jurisdiction under rule 28 is one which a court will be slow to exercise and it should “exercise caution in utilising this jurisdiction.” However, she went on to say that “if a court is convinced that a claim will fail”, a pleading will be struck out.

16-06 It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley, who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. King, where he stated that rule 28 only applies where it can be shown that the text of the plaintiff's summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings only, ignoring any affidavit evidence filed, and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party. Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc that “the court must accept the facts as asserted in the plaintiff's claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd, the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”

18 Baker J in Wilkinson v Ardbrook Homes was dealing with an application under both Order 19 Rule 28 and under the Court's inherent jurisdiction.

19 Delany and McGrath went on to say:

“ 16-07 A pleading such as a statement of claim can be struck out where it fails to disclose a reasonable cause of action, i.e. where the facts and matters pleaded in the statement of claim do not constitute a cause of...