McMahon & Sharma v WJ Law & Company LLP and Others

CourtHigh Court
JudgeMr. Justice MacMenamin,Mr. Justice John MacMenamin
Judgment Date15 June 2007
Neutral Citation[2007] IEHC 194,[2007] IEHC 51
Docket Number[No. 5987 P/2006]
Date15 June 2007
B etween
John Mc Mahon and Sheena Sharma


W.J. Law and Company LLP, W J. Law Castleblayney Limited, Mary Comer, Peter Comer, Corrigan, Coyle, Kennedy Mc Cormack and J.J. Keenan and Son

[2007] IEHC 194

[No. 5987 P/2006]

The high court


Practice and procedure - Strike out - Frivolous and vexatious - Isaac Wunder order - McKenzie friend - Mediation - Rules of the Superior Courts, O. 19, r. 28

This was an application for an order striking out the proceedings as disclosing no reasonable cause of action and for an order prohibiting the plaintiff from instituting legal proceedings without leave of the Court, an "Isaac Wunder" order.

Held by McMenamin J. in striking out the proceedings that the Court could not but conclude that the proceedings were frivolous and vexatious. The application for an Isaac Wunder order should be adjourned pending the outcome of other motions.

Observations: An honorable compromise in any case was far preferable to a futile stand on principle. In any legal case there might arise questions of moral obligation as well as legal rights. In the circumstances, the Court was prepared to request the Chairman of the Bar Council to nominate a mediator.

Reporter: R.W.


1. On the 2nd March, 2007 I delivered a ruling in relation to a motion brought by the first and second named defendants to strike out the proceedings against them on the grounds that they disclosed no reasonable cause of action. A further order was sought that the first named plaintiff be prohibited from instituting legal proceedings against the first and second named defendants without leave of this Court.


2. This ruling deals with motions for the same relief brought by the third and fourth named defendants (represented Mark de Blacam S.C.), the fifth named defendant (represented by Rossa Fanning B.L.), and the sixth named defendant (represented by Paul Fogarty B.L.).


3. The first named plaintiff was represented in this motion by Ms. Angela Heavey B.L. The second named plaintiff was not represented at this hearing although she was made aware that it was to proceed and had indicated at earlier hearings that she intended to take no further part in the proceedings.


4. The background to the application is described in the earlier ruling. In summary this motion brought by the various defendants relates to a plenary summons issued on the 4th December, 2006. It is the fourth proceeding issued by or on behalf of the first named plaintiff relating to lands at Killycard and Bree, Castleblayney, Co. Monaghan (registered under Folio Numbers MN9975 and MN10190). By deed of assignment dated the 15th January, 2007 Mary Comer assigned to W.J. Law (Castleblayney Ltd.) (the second named defendant) "all the benefit and advantages of the Circuit Court proceedings (relating to these lands) together with the costs and all other monies recoverable ...". The proceedings are described in more detail below".


5. Mary Comer is the legal person representative of the late Peter Shevlin, a cousin of the first named plaintiff John McMahon. The deceased died in a road traffic accident in Castleblayney, Co. Monaghan on the 21st March, 2002. The first named plaintiff Mr. McMahon, alleges that over the years a relationship or partnership evolved between himself and Mr. Shevlin who was John McMahon's mother's nephew. Mr. McMahon contends that there was a form of agreement or trust arrangement whereby, in return for taking care of the farm, Mr. Shevlin would bequeath the farm to him. At the time of his death, Peter Shevlin had not made a will in favour of Mr. McMahon. He died intestate. The lawful beneficiaries in the intestacy were the third and fourth named defendants who live in the State of New York. They are the nephew and niece of the deceased and therefore his next of kin. In the Circuit Court proceedings brought by Mary Comer on the 16th March, 2004 against the first named plaintiff for vacant possession of the lands, John McMahon counterclaimed seeking a declaration of his entitlement to those lands which he used and occupied. These proceedings were heard on the 26th January, 2006 where an order was made as to the Comers' entitlement and restraining Mr. McMahon from entering onto the lands after the expiration of a period of three months. This was appealed to the High Court. After the matter was part heard the case settled. There was a variation of the order on consent on the 21st February, 2006, to the effect that Mr. McMahon would hand over vacant possession of the lands on or before the 17th March, 2006. A sum of money (€80,000) was to be paid to John McMahon. The first named plaintiff, did not comply with his obligations under the consent order. There were a number of applications for attachment and committal brought against him by the Comers. These came before the Circuit Court. Mr. McMahon was ordered to vacate the lands by the 31st May, 2006 which period of time was subsequently extended to the 11th July, 2006. He did not vacate the lands.


6. Ultimately on the 14th July, 2006 Mr. McMahon was committed to Castlerea Prison in Co. Roscommon for seven days for contempt of court. On 21st July, 2006 Mr. McMahon was committed for a further six days for continuing contempt of court. He was ultimately released by order of that court on the 27th July, 2006.

During that time John McMahon initiated an enquiry under Article 40.4 of the Constitution challenging his detention for contempt of court. This was superseded by order of the Circuit Court made on the 27th July, 2006 releasing him and did not proceed.


7. On the 8th August, 2006 the first named plaintiff instituted a further set of High Court plenary proceedings against Mary Comer and Peter Comer seeking damages for negligence, breach of duty and misrepresentation against them. A motion for interlocutory injunctive relief which came on for hearing on the 23rd October, 2006 in that proceeding was struck out.


8. On the 1st November, 2006 the first named plaintiff issued yet a further set of proceedings by way of special summons (No. 544SP/2006). These proceedings sought essentially the same reliefs, asserting the right of Mr. McMahon to the lands and denying the entitlements of the Comers. These proceedings, specifically, included a number of allegations against solicitors (engaged by the Comers) alleging gross professional and fiduciary negligence and also putting in question whether Peter and Mary Comer were in fact related to the late Mr. Shevlin, a fact not in anyway questioned earlier. Upon the return date of the special summons dated the 23rd November, 2006 the Master of the High Court indicated that the proceedings had been incorrectly initiated by way of special summons and suggested to the first named plaintiff that should he wish to proceed further it should be done by way of plenary summons.


9. No appeal was brought against the order of the Master of the High Court which included an offer for costs which has not been discharged.

The instant proceedings-by plenary summons

10. The proceedings which are the subject matter of these applications were issued on the 4th December, 2006. They relate to the same subject matter. The plaintiffs sought a total of forty six reliefs including declarations that the first named plaintiff was the true and lawful owner of the lands the subject matter of the Circuit Court proceedings, as appealed and already dealt with in the earlier proceedings.


11. Any analysis of the essential reliefs sought in this plenary summons shows quite plainly it is again an attempt to re-litigate the issues which arose in the Circuit Court, the High Court on appeal and afterwards the subsequent High Court proceedings before the Master by way of special summons. Mr. McMahon now alleges that he was pressurised into entering the settlement (he was advised and represented by Senior and Junior counsel at the Circuit Appeal) and alleges that he felt threatened that if the proceedings were to proceed he ran the risk of losing his house in legal costs.

In the first ruling herein on the 2nd March, 2007 I refrained from expressing any view on the validity of this advice. Any subsequent material adduced before this court does nothing other than establish, that the effect if not the manner of advice given to Mr. McMahon and his wife, was correct. The most important point in this entire affair, at risk of further reiteration, is that, (unfortunately from his point of view), Mr. McMahon has established no claim at all on the lands, the subject of these proceedings.


12. Further evidential material adduced now in these motions persuades me that Mr. McMahon has, unfortunately a total mental bloc on this issue and has acquired a fixed and unalterable notion that he is entitled to the lands in the face of all or any evidence. This is despite the fact that the court has been shown a family tree drawn up by the sixth named defendant (who acted as Mr. McMahon's solicitor in the Circuit Court and the High Court) which quite clearly establishes the nature of the relationship between himself, Peter Shevlin and the Comers. It is undisputed this was drawn up on the instructions of the first named plaintiff.


13. More remarkably there is now exhibited material from an application for planning permission submitted to the local authority on the 15th June, 2006 for re-zoning of the lands. This was at a date after the completion of the High Court proceedings, where Mr. McMahon had consented to vacate the lands in the consent signed by himself and his wife. This planning application was made in the name of John McMahon at a time when he acknowledged he was no entitled to the land. No explanation for this has been furnished to this Court. As in the case of the family...

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