Majella Rippington v Thomas Loomes Practising Under the Style and Title of Thomas Loomes and Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 December 2024
• Neutral Citation: [2024] IEHC 716
• Court: High Court
• Docket Number: [Record No. 2015/324P]

Between

Majella Rippington

Plaintiff

and

Thomas Loomes Practising Under the Style and Title of Thomas Loomes and Company

Defendant

[2024] IEHC 716

[Record No. 2015/324P]

THE HIGH COURT

Professional negligence – Strike out – Res judicata – Defendant seeking an order striking out the plaintiff’s action against him – Whether the issues raised in the proceedings were res judicata

Facts: The plaintiff, Mrs Rippington, in professional negligence proceedings, sued the defendant, Mr Loomes, in relation to alleged negligence on his part in his representation of her in a will suit, which had been brought by her and others challenging her sister’s will. The defendant applied to the High Court for an order striking out the plaintiff’s action against him on the grounds that the issues raised in the proceedings were either res judicata, or were caught by the rule in Henderson v Henderson (1843) 3 Hare 100. The defendant submitted that in proceedings which were commenced by him in 2014 against the plaintiff, in which he had sued for recovery of his fees, she had raised a counterclaim in which she alleged that he had been negligent in the manner in which he had represented her in the will suit. On 6 March 2020, Meenan J (then sitting as a judge of the High Court) gave a written judgment in which he found in favour of the claim for recovery of fees brought by the defendant. Meenan J also found against the plaintiff in her counterclaim brought against the defendant. On the basis of that judgment, the defendant submitted that the plaintiff’s claim in these proceedings was either res judicata, or insofar as it encompassed any new head of claim against him, was caught by the rule in Henderson v Henderson.

Held by Barr J that any claim by the plaintiff that the defendant acted negligently or in breach of contract in and about his representation of her in the will suit had been heard and determined by a court on a previous occasion. Barr J found that it was clear that this issue was raised by the plaintiff in her counterclaim to the summary proceedings which had been bought by the defendant for recovery of his fees; those proceedings had been remitted to plenary hearing and they were heard by way of oral evidence before Meenan J. Barr J was satisfied that Meenan J’s judgment in Loomes v Rippington & Others [2020] IEHC 237 dealt with the plaintiff’s claim of negligence and breach of contract against the defendant; the judge dismissed that claim. Barr J held that those issues were clearly res judicata; they could not be relitigated in these proceedings. Barr J found that the plaintiff was trying to relitigate her allegations of negligence and breach of contract against the defendant, which had already been determined in the judgment delivered by Meenan J in 2020; alternatively, she was trying to raise new allegations of impropriety, which ought to have been included in her previous counterclaim. Barr J was not satisfied that there were any special circumstances in this case which would warrant a departure from the application of the rule in Henderson v Henderson.

Barr J held that these proceedings were an abuse of court processes. Barr J held that the defendant was entitled to an order striking out the proceedings against him.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 20 ^th day of December 2024

Introduction.

1 . As it will be necessary to refer to the parties to these proceedings in their role in other proceedings, I will refer to the plaintiff either as “the plaintiff” or “Mrs. Rippington”. I will refer to the defendant as “the defendant” or “the solicitor”.

2 . These are professional negligence proceedings in which the plaintiff is suing her former solicitor in relation to alleged negligence on his part in his representation of her in a will suit, which had been brought by her and others challenging her sister's will.

3 . The present application is an application by the defendant for an order striking out the plaintiff's action against him on the grounds that the issues raised in these proceedings are either res judicata, or are caught by the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (hereinafter “ Henderson v Henderson”).

4 . The defendant submits that in proceedings which were commenced by him in 2014 against Mrs. Rippington, in which he had sued for recovery of his fees, Mrs. Rippington had raised a counterclaim in which she alleged that the solicitor had been negligent in the manner in which he had represented her in the will suit. On 6 March 2020, Meenan J. (then sitting as a judge of the High Court) gave a written judgment in which he found in favour of the claim for recovery of fees brought by the solicitor. He also found against Mrs. Rippington in her counterclaim brought against the solicitor.

5 . On the basis of that judgment, the defendant submits that the plaintiff's claim in the present proceedings is either res judicata, or insofar as it encompasses any new head of claim against him, is caught by the rule in Henderson v Henderson.

Background.

6 . This action is but one of several actions which have been brought by the plaintiff against various parties. Nearly all these cases concern the conduct and outcome of the will suit, which challenged the validity of her sister's will.

7 . The will suit was encompassed in proceedings bearing Record Number 2011/8319P, where the plaintiff, her husband, and another sister, challenged a will executed by the plaintiff's sister. The defendant had been retained to act on behalf of the plaintiffs in those proceedings.

8 . The defendant withdrew his services as solicitor for the plaintiffs on or about 24 July 2012. A notice of discharge of solicitor was filed by the plaintiffs in early August 2012.

9 . In 2015, Noonan J. (then sitting as a judge of the High Court) delivered a judgment in which he found against the plaintiffs in the will suit.

10 . The plaintiff subsequently sought an extension of time within which to appeal an order that had been made by O'Neill J. in the course of the will suit, which had appointed a particular solicitor as personal representative of the deceased for the purpose of collecting in the assets of the deceased and defending the litigation. Somewhat curiously, that order had been made on consent. The plaintiff was unsuccessful in her application for an extension of time to appeal that order. She appealed that refusal to the Court of Appeal.

11 . On 19 December 2017, two judgments were delivered in the Court of Appeal. Both judgments held against the plaintiff. In the first judgment, which was delivered by Peart J. the plaintiff's appeal against the refusal of an extension of time to challenge the order made in 2012, was dismissed ( [2017] IECA 332). On the same date, her appeal against the judgment and order of Noonan J., was also dismissed ( [2017] IECA 331).

12 . In 2014, in proceedings bearing Record Number 2014/336S, the solicitor bought proceedings for recovery of his fees against Mrs. Rippington. Those proceedings were remitted to plenary hearing. Mrs. Rippington filed a full defence and a counterclaim, in which she claimed damages for negligence against the solicitor, arising out of his allegedly negligent representation of her in the will suit.

13 . In a judgment delivered on 6 March 2020, Meenan J. granted judgment in favour of the solicitor. He dismissed the counterclaim that had been brought by Mrs. Rippington. In a subsequent order made on 5 May 2022, Meenan J. measured the fees that were due to the solicitor in the sum of €55,641.79.

14 . Mrs. Rippington was successful in her appeal against the measurement of the solicitor's fees in the High Court. In an ex tempore judgment delivered on 31 March 2023, Allen J. set aside the measurement of fees that have been carried out in the High Court. The court directed that the solicitor's bill of costs be sent for adjudication before a Legal Costs Adjudicator.

15 . In the present proceedings, which were commenced by plenary summons issued on 16 January 2015, the plaintiff is seeking damages for breach of contract and negligence against the defendant arising out of his allegedly negligent representation of her in the will suit. Her claim against the defendant was set out in extenso in a statement of claim delivered on 17 January 2016. The court was also furnished with an amended statement of claim dated 7 March 2024. However, it is not clear whether any order was made by the High Court granting the plaintiff liberty to amend her statement of claim. No such order has been exhibited.

16 . Finally, the plaintiff issued proceedings against Ireland, and the Attorney General, and a large number of other defendants, including officers of the Probate Office and the County Registrar, claiming that they had acted wrongfully in and about the processing of documents and the taking of steps in the will suit.

17 . An application was brought by a number of the defendants in those proceedings seeking to have the action against them struck out as being frivolous and vexatious. Those applications were successful in the High Court, where Simons J. struck out the proceedings against those defendants. He also made an Isaac Wunder order against the plaintiff, restraining her from bringing any further action against named individuals without leave of the President of the High Court.

18 . Mrs. Rippington appealed that decision to the Court of Appeal, where she was largely unsuccessful. The appeal was dismissed, save that a slight reduction was made to the extent of the Isaac Wunder order ( [2021] IECA 97).

The Issue for Determination.

19 . The notice of motion that was initially brought before the court by the defendant in this application, contained a number of reliefs. These were essentially seeking to strike out the proceedings on several different grounds. At the outset...