Towey v The Government of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Dignam
• Judgment Date: 11 November 2022
• Neutral Citation: [2022] IEHC 559
• Court: High Court
• Docket Number: Record No. 2021 6436 P

Between

Patrick Towey and Magdalen Towey

Plaintiff

and

The Government of Ireland, Ireland and The Attorney General, The Minister for Justice and Equality, Start Mortgages Dac, Lavelle Partners, The Chief State Solicitor, Rachel Meagher, Kieran Madigan, The Courts Service, Francis Comerford, Karen Fergus, The Garda Commissioner

Defendants

[2022] IEHC 559

Record No. 2021 6436 P

THE HIGH COURT

Isaac Wunder order – Strike out – Order 19, rule 28 of the Rules of the Superior Courts – Defendants seeking reliefs striking out the plaintiffs’ claim – Whether the proceedings were frivolous and vexatious

Facts: The plaintiffs, Mr and Ms Towey, sought various reliefs including orders for “contempt of court” against the Chief State Solicitor, who, it was claimed, was not entitled to act for the Circuit Court Judges named in the proceedings and against Start Mortgages DAC and Lavelle Solicitors, and orders “for criminal investigation and prosecution of perjury by” a solicitor in the Office of the Chief State Solicitor and a solicitor in Lavelle Solicitors, and for orders for “Investigation and Prosecution” of treason by the Chief State Solicitor and the Government. The plaintiffs did not appear at the hearing to prosecute their motions. Two motions brought by the defendants were broadly similar to each other. The focus at the hearing was on the three reliefs which the defendants’ two motions shared in common, i.e., the reliefs striking out the plaintiffs’ claim under Order 19, rule 28 of the Rules of the Superior Courts or the court’s inherent jurisdiction and the Isaac Wunder order.

Held by the High Court (Dignam J) that in circumstances where the plaintiffs chose not to attend it would be appropriate to strike out their motions. He held that he would strike out the plaintiffs’ claim under Order 19 rule 28 and under the Court’s inherent jurisdiction on the grounds that the plaintiffs’ claim disclosed no reasonable cause of action against the defendants and the proceedings were frivolous and vexatious, bound to fail and were an abuse of process.

Dignam J held that it was appropriate to make an order in the terms sought by the second, third, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth defendants (the State defendants), with one amendment: “An Order that the Plaintiffs be restrained from instituting any further proceedings against any of Ireland, the Attorney General, the Minister for Justice, the Chief State Solicitor or any solicitor employed in the Office of the Chief State Solicitor, [Ms] Meagher, [Mr] Madigan or any State Solicitor, the Courts Service or any person employed by the Courts Service, [Mr] Comerford, [Ms] Fergus, the Commissioner of An Garda Síochána, [Ms] Egan, or [Ms] O’Loghlen directly or indirectly concerning (i) the Order of [Her Honour Judge Fergus] made on the 25th day of June 2019 in proceedings entitled Start Mortgages DAC v Patrick Towey and Magdalen Towey and bearing Roscommon Circuit Court record number 2018/00057 (the “Order of Judge Fergus”), or (ii) any legal proceedings issued by the Plaintiffs in which reference has been made to the Order of Judge Fergus, without the prior leave of the President of the High Court or some other Judge nominated by her, and with such application for leave being on notice to the intended defendants or respondents.” He held that the order sought by the fifth and sixth defendants was too broad. He proposed making an order in the following terms: “An Order that the Plaintiffs be restrained from instituting any further proceedings against the fifth and sixth named defendants, Start Mortgages DAC and Lavelle Lavelle Partners LLP directly or indirectly concerning (i) the Order of [Her Honour Judge Fergus] made on the 25th day of June 2019 in proceedings entitled Start Mortgages DAC v Patrick Towey and Magdalen Towey and bearing Roscommon Circuit Court record number 2018/00057 (the “Order of Judge Fergus”), or (ii) any legal proceedings issued by the Plaintiffs in which reference has been made to the Order of Judge Fergus, without the prior leave of the President of the High Court or some other Judge nominated by her, and with such application for leave being on notice to the intended defendants or respondents.”

Orders granted to defendants.

Judgment of Mr Justice Dignam delivered on the 11 ^th day of November 2022 .

Introduction

1 This judgment deals with five separate motions: three brought by the plaintiffs, one brought by the fifth and sixth-named defendants, Start Mortgages DAC and Lavelle Partners (referred to in error in the Notice of Motion as the “fourth and fifth-named defendants”), and one brought by all of the other defendants save for the first-named defendant.

2 In circumstances where the plaintiffs did not appear to prosecute their motions, they can be dealt with very quickly. The plaintiffs sought various reliefs including orders for “ contempt of court” against the Chief State Solicitor who, it is claimed, is not entitled to act for the Circuit Court Judges named in the proceedings and against Start Mortgages DAC and Lavelle Solicitors, and orders “for criminal investigation and prosecution of perjury by” a solicitor in the Office of the Chief State Solicitor and a solicitor in Lavelle Solicitors, and for orders for “ Investigation and Prosecution” of treason by the Chief State Solicitor and the Government.

3 Each of these motions were expressed to be brought by the “ Plaintiff” but the grounding affidavits are stated to be sworn by both plaintiffs so I am treating the motions as having been brought by both plaintiffs.

4 As noted above, the plaintiffs did not appear at the hearing to prosecute their motions. This was a conscious decision of the plaintiffs. They informed the defendants (Chief State Solicitor's Office) by email of the 14 ^th April, 2022 that they would not be attending in circumstances where they had made a complaint to An Garda Síochána of fraud by members of staff in the Central Office and they would not be attending where there is an ongoing criminal investigation of these allegations. Letters were sent to each of the plaintiffs dated the 28 ^th April 2022 by the Chief State Solicitor (“the CSSO”) informing them that this email had been brought to Allen J's attention and that he had directed that the matter could proceed on the 3 ^rd May and that should the plaintiffs wish to make submissions in respect of the motions they would have to attend on the 3 ^rd May 2022 to do so. In circumstances where the plaintiffs chose not to attend (notwithstanding Allen J's comments) it would be appropriate to simply strike out the motions without further comment (and I will strike them out) but I think it is necessary and appropriate to note that, as is apparent from the reliefs sought, they are at least in part directed at professional legal representatives and both explicitly and implicitly make allegations of a serious nature against those legal professionals. It is utterly unacceptable to make such allegations and not either withdraw them or stand over them. Furthermore, without any further explanation (which the plaintiffs chose not to give), it is impossible to see any connection between the plaintiff's allegation of fraud against members of the Central Office and the plaintiffs' decision not to either withdraw or prosecute the allegations made against these professionals.

5 I will not make any comment in respect of the merits of the reliefs, though I will have to return to the reliefs in the context of my discussion of the Isaac Wunder orders sought by the defendants.

6 The two motions brought by the defendants are broadly similar to each other. The second, third, fourth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth-named defendants issued a motion on the 22 ^nd February 2022. I will refer to these defendants as the “State defendants” as this is the description used in the grounding affidavit on their behalf. The motion is not brought on behalf of the first-named defendant on the basis that the “ Government of Ireland” is not a legal entity. The reliefs which are sought are:

“1. An Order pursuant to Order 19, rule 28 of the Rules of the Superior Courts striking out the Plaintiffs' claim against the Second, Third, Fourth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth Defendants on the grounds that it discloses no reasonable cause of action against those defendants;

2. In the alternative, an Order pursuant to the inherent jurisdiction of this Court striking out the Plaintiffs' proceedings against the Second, Third, Fourth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth Defendants on the grounds that the proceedings against those defendants are frivolous, vexatious, bound to fail and/or an abuse of process;

3. An Order that the Plaintiffs be restrained from instituting any further proceedings directly or indirectly concerning (i) the Order of Her Honour Judge Karen Fergus made on the 25 ^th day of June 2019 in proceedings entitled Start Mortgages DAC v Patrick Towey and Magdalen Towey and bearing Roscommon Circuit Court record number 2018/00057 (the “Order of Judge Fergus”), or (ii) any legal proceedings issued by the Plaintiffs in which reference has been made to the Order of Judge Fergus, without the prior leave of the President of the High Court or some other Judge nominated by her, and with such application for leave being on notice to the intended defendants or respondents.”

7 The motion brought by the fifth and sixth-named defendants also seeks orders striking out the plaintiffs' claim on the grounds that it fails to disclose a reasonable cause of action, is frivolous and vexatious, bound to fail and is an abuse of process under Order 19 rule 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court and an “ Isaac Wunder Order”. This is different in its terms...