Leahy v Tippo International Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 16 February 2024
• Neutral Citation: [2024] IEHC 98
• Court: High Court
• Docket Number: Record No. 2021/5874P

Between:

Michael Leahy

Plaintiff

and

Tippo International Limited

Defendant

[2024] IEHC 98

Record No. 2021/5874P

THE HIGH COURT

JUDGMENT ofMr. Justice Conleth Bradleydelivered on the 16 ^th day of February 2024

INTRODUCTION

Preliminary

1 The Plaintiff is a businessman involved in the business of kitchen workshop manufacturing in County Laois. The Defendant Company carries on the business of manufacturing kitchen components at its premises in Nenagh, County Tipperary. The Plaintiff had an agency agreement with a company based in Germany for the supply of kitchen worktops and the Defendant entered into an agreement with the Plaintiff that allowed the Defendant to distribute this product in Ireland. The business premises (“the premises”) was the Defendant's Factory in Kilkeary, Nenagh, County Tipperary.

2 According to the Defendant (Affidavit of Patrick Martin dated 24 ^th March 2022, paragraph 5), it took over the production and sale of the kitchen worktops and agreed to pay a consultancy fee to the Plaintiff, also agreeing to make certain payments to the Plaintiff in respect of machinery. The (joint venture) agreement between the parties was dated and endorsed on 21 ^st June 2008 and this business relationship came to an end culminating in a mediated settlement agreement dated 4 ^th September 2018. The parties have subsequently been involved in a series of legal disputes and litigation.

3 In this application, issued by way of Notice of Motion and date stamped 31 ^st March 2022, the Defendant Company seeks two orders against the Plaintiff: first, it seeks an order invoking the inherent jurisdiction of the court dismissing the Plaintiff's proceedings in this action ( Record Number 2021/5874P) as being bound to fail; second, the Defendant seeks what is effectively an Isaac Wunder Order against the Plaintiff, prohibiting him from issuing further proceedings against the Defendant or the Defendant's solicitors without the leave of the President of the High Court.

Preliminary objection: discovery

4 Mr. Leahy (“the Plaintiff”) is a litigant in person. At the commencement of this application, he raised a preliminary objection stating that this application was premature in circumstances where he had an extant discovery application. Having considered the order of the Deputy Master of the High Court in that application, I decided that this application should proceed.

5 Mr. Paul Gallagher BL appeared for the Defendant.

6 There is, as stated earlier, a protracted history of litigation between the parties, and between the Plaintiff and third parties, which provides the immediate context to this application and which is referred to later in this judgment.

PLENARY PROCEEDINGS: RECORD NO. 2021/5874P

7 The Plaintiff issued a Plenary Summons in Record No. 2021/5874P on 15 ^th October 2021 and delivered a Statement of Claim on 21 ^st January 2022.

8 By way of general overview, in the Statement of Claim, the Plaintiff alleges certain financial consequences arising from the parties' business relationship: (i) before and after a fire which took place at the premises on or about 26 ^th October 2016; and (ii) from the use of machinery at the Defendant's factory through “wear and tear”.

9 The Plaintiff seeks: (1) damages for the Defendant's alleged negligence and/or breach of contract and/or breach of duty (including statutory duty) and breach of duty of care whereby it is alleged that, arising from the Defendant's failures, the Plaintiff has suffered loss and loss of earnings and loss of opportunities; (2) damages for alleged loss of earnings within the last 6 years; (3) damages for alleged loss of opportunities within the last 6 years.

10 The Plaintiff alleges the following particulars of damage (the extracts referred to are quoted verbatim from the Plaintiff's pleadings):

“ [o]n the Defendant effectively unilaterally ending the 2008 contract after the fire, the Plaintiff suffered the loss of opportunity by the Defendant not from the proceeds of the insurance claim and/or by the financial relief gained by the Defendant with the Plaintiff's “commissioned production line/facility” coming to the Defendant's business in not putting the Plaintiff back in the position of the Joint Venture and/or in the alternative depriving the Plaintiff of having a commissioned production line/facility to manufacture and carry on his trade.”

11 The Plaintiff also pleads the reservation of his right to amend the Statement of Claim.

12 Six particulars of negligence are pleaded by the Plaintiff under the sub-heading “Particulars of Negligence.”

13 In the first paragraph under the sub-heading “Particulars of Negligence”, for example, the Plaintiff alleges that “ [t]he Defendant was negligent in that the factory while been built over the years with add on buildings, that in 2008 a new era of fire protection when building Hall 3 of which contained the Plaintiff's machinery there ought to have been sufficient fire wall and fire door protections from other areas of the factory to contain the fire away from the Plaintiff's machinery and the production facility full preventing the destruction of the commissioned production line/facility the Plaintiff relied on and/or reduce the damage to the commissioned production facility the Plaintiff relied on.”

14 The commissioned production line facility is described in paragraph 12 of the Statement of Claim as “ [c]ore machinery all connected through the servicing lines formed a commissioned production unit while specified and designed to produce innovation contoured worktops was in addition a self-contained universal production facility for the related products within the kitchen industry.”

15 There then follows four particulars of negligence which pleads variations of a plea alleging the Plaintiff's machinery and “ commissioned production line/facility” came to the Defendant's business at zero cost and that the Defendant was allegedly negligent in not repairing/replacing their “ wear and tear”.

16 The sixth paragraph, alleging particulars of negligence, pleads that “… the Defendant was negligent in that they did not insure the Plaintiff's losses at all and/or in full.”

17 Variations of the aforesaid pleas are also alleged in ten paragraphs setting out particulars of “breach of duty” alleging inter alia that the Defendant breached its duty to the Plaintiff in, for example, not having financial relief to replace (i) the Plaintiff's machinery due to wear and tear; (ii) the commissioned production line facility after the fire of 26 ^th October 2016 (irrespective of the Defendant's insurance claim). It is also alleged, for example, that the Defendant breached its duty to the Plaintiff in that, as of the agreement dated 21 ^st June 2008, the Defendant did not insure the Plaintiff's risk, has not fully compensated the Plaintiff for his alleged loss of income resulting from the October 2016 fire, and has not placed the Plaintiff in the equal position of the Defendant following the commissioning of the rebuilding the factory.

18 The Plaintiff pleads six particulars of alleged breach of contract, two of which refer to the “2008 agreement” (alleging failure to insure the Plaintiff against risk and ending the agreement) and one of which refers to the 2018 agreement (alleging a failure to bring the Plaintiff back to the status quo position prior to the 2018 agreement), and others alleging no priority to workshop production in the fully commissioned rebuilt factory, not insuring the replacement of the Plaintiffs' commissioned production line/facility at all or ‘old for new.’

19 Accordingly, it is the above action – Record No. 2021/5874P – which the Defendant seeks to dismiss as bound being bound to fail in this application in addition to seeking an Isaac Wunder order against the Plaintiff.

20 I now briefly set out the arguments of the Defendant and the Plaintiff.

SUMMARY OF THE DEDENDANT'S ARGUMENTS

Affidavit of Patrick Martin sworn on 24th March 2022

21 The rationale grounding the Defendant's application to dismiss and to seek an Isaac Wunder order is set out in the Affidavit of Patrick Martin, sworn on 24 ^th March 2022.

22 Mr. Martin states by reference to proceedings issued by the Plaintiff – The High Court, Between Michael Leahy (trading as Ideal Kitchens) (Plaintiff) v Tippo International Ltd (Defendant) ( Record No. 2014/1623S) dated 23 ^rd June 2014 – that the Plaintiff has issued proceedings arising out of the same matters in dispute in these proceedings, namely ( Record Number 2021/5874P).

23 Mr. Martin then refers to a successfully mediated settlement agreement dated 4 ^th September 2018 and quotes the terms of that agreement as follows:

“ (11) I say that as per the settlement agreement the parties:

• • Acknowledged the termination of the [agreement] entered into on the 21 ^st June 2008 and the termination of all and/or any variation of the said agreement entered into thereafter;

• • Agreed that the Defendant would pay the Plaintiff the sum of €550,000. A payment of €100,000 was to be made on the 8 ^th October 2018 and subsequent payments of €50,000 per month were payable on the 8 ^th day of the month;

• • Agreed that the sum was to be in full and final settlement of all claims howsoever arising between the parties, including but not limited to claims for machinery, fees due and notice period;

• • The Plaintiff agreed to discontinue proceedings between the parties Record No. 2014/1623S.

(12) I say and believe that the Defendant has complied with the settlement agreement …”.

24 Reference is then made to unrelated proceedings entitled Circuit Court Record No. 2010/EJ003: Michael Doyle v Michael Leahy t/a Ideal Kitchens.

25 In these unrelated proceedings, Mr. Michael Doyle obtained an order from the Circuit Court (Her Honour Judge Doyle) on 28 ^th September 2018 against the Plaintiff in the sum of €29,796 and on 6 ^th November...