Moorview Developments Ltd and Others v First Active Plc and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 05 February 2010
• Neutral Citation: [2010] IEHC 34
• Court: High Court
• Date: 05 February 2010

[2010] IEHC 34

THE HIGH COURT

[No. 9018 P/2003]

Moorview Developments Ltd & Ors v First Active Plc & Ors

BETWEEN

MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED AND BLONDON PROPERTIES LIMITED

PLAINTIFFS

AND

FIRST ACTIVE PLC AND RAY JAKCSON AND BY ORDER BERNARD DUFFY

DEFENDANTS

AND LINKED PROCEEDINGS

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 6.3.2009 2009 IEHC 214

OUTHWAITE v HUDSON 1852 7 EXCH 380 155 ER 995

POYSER v MINORS 1880-81 7 QBD 329

R v MACHEN & BRICKDALE 1849 14 QB 74 117 ER 29

CLACK v ARTHURS ENGINEERING LTD 1959 2 QB 211 1959 2 WLR 916 1959 2 AER 503

MAY, IN RE 1885 28 CH D 516

SUPREME COURT OF JUDICATURE ACT 1873

ERNST & YOUNG (A FIRM) v BUTTE MINING PLC 1996 2 AER 623 1996 1 WLR 1605

SMYTH v TUNNEY & ORS UNREP SUPREM 23.1.2009 2009 IESC 5

WHITE v SPENDLOVE 1942 IR 224

FOX v STAR NEWSPAPER CO LTD 1898 1 QB 636

FOX v STAR NEWSPAPER CO LTD 1900 AC 19

FLETCHER v LONDON & NORTH WESTERN RAILWAY CO 1892 1 QB 122

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP CLARKE 20.5.2008 2008/43/9234 2008 IEHC 211

BARRY v BUCKLEY 1981 IR 306 1981/9/1485

HETHERINGTON v ULTRA TYRE SERVICE LTD & ORS 1993 2 IR 535 1993 ILRM 353 1993/8/2095

HANAFIN v MIN FOR ENVIRONMENT & ORS 1996 2 IR 321 1996/5/1182

O'TOOLE v HEAVEY 1993 2 IR 544 1992/12/3982

PRACTICE & PROCEDURE

Non-suit

Definition - Historical meaning - Res judicata - Compulsary non-suit - Whether entitled to raise matters already the subject of judgment - Whether distinction between non-suit and direction or dismissal of claim - Whether non-suit described nineteenth century procedure - Whether plaintiff's right to choose to be non-suited abolished - Whether compulsary non-suit remained - Whether res judicata - Outhwaite v Hudson (1852) 7 Ex 380; Poyser v Minors (1881) 7 QBD 329; R v Machen [1849] 14 QB 74; Clack v Arthur's Engineering [1959] 2 QB 211; Re May [1885] 28 Ch D 516; Ernst and Young v Burte Mining plc [1996] 1 All 623; Smyth v Tunney [2009] IESC 5; White v Spendlove [1942] IR 224; Fox v Star Newspaper Co [1898] 1 QB 636; Fletcher v London and North Western Rail Company [1892] 1 QB 122; Moorview Developments v First Active plc [2008] IEHC 211, (Unrep, Clarke J, 20/5/2008); Barry v Buckley [1989] IR 306; Hetherinton v Ultra Tyre Services Ltd [1993] 2 IR 535; Hanafin v Minister for Environment [1996] 2 IR 544 and O'Toole v Heavy [1993] 2 IR 544 considered - Supreme Court of Judicature Act 1873 (36 & 37 Vict c 77) - Rules of the Supreme Court (Ireland) 1905, O 26 r 1 - Rules of the Superior Courts 1877, O 40 r 6 - Held that matters the subject of non-suit were binding and res judicata applied (2003/9018P - Clarke J - 5/2/2010) [2010] IEHC 34

Moorview Developments Ltd v First Active plc

1. Introduction

2 2 1.1 Further issues continue to arise in these complex and protracted proceedings. In a judgment delivered on the 6 ^th March, 2009, Moorview Development & Ors v. First Active Plc & Ors [2009] IEHC 214, (the "main judgment") I came to the conclusion, for the reasons set out in that judgment, that, with certain immaterial exceptions, each of the questions which were then at trial (the "main trial") were properly the subject of a non-suit.

3 3 1.2 For the reasons noted in the main judgment some of the issues in these linked proceedings were left over for further hearing. Indeed, some of those issues, not dealt with in the main judgment, have since been the subject of determination. However, for the purposes of the question which I now have to answer, it is important to note that two of the matters which were, by agreement of the parties and the court, not dealt with at the time of the main trial, were the counterclaim in Case A and the claim in Case D (using the same lettering as is referred to in the main judgment and, in particular, the first schedule thereto). The counterclaim in Case A involves a claim by the first named defendant ("First Active") against certain of the plaintiffs ("the Cunningham Group") for monies said to be due by certain companies within the Cunningham Group to First Active. Case D involves a claim by First Active against Mr. Brain Cunningham ("Mr. Cunningham") personally on foot of guarantees.

4 4 1.3 Subsequent to delivering the main judgment, the remaining issues in these linked proceedings were the subject of further case management with a view to bringing same to trial. It was agreed that the counterclaim in Case A and the claim in Case D could conveniently be tried together. However, in the course of preparation for the trial of those matters, it became clear that it was the intention of the Cunningham Group and Mr. Cunningham to seek to re-open, at the hearing of those cases, certain questions which had already been addressed in the main judgment. First Active contended that such a course of action was not permissible. It was agreed that a preliminary question should be tried as to whether it was, in fact, open to the Cunningham Group and Mr. Cunningham to raise as matters of defence (either to the counterclaim or in relation to Mr. Cunningham's personal liability on the relevant guarantees) issues that were already the subject of the main judgment.

5 5 1.4 This judgment is directed to the preliminary question raised. I turn, therefore, firstly to the case made on behalf of the Cunningham Group and Mr. Cunningham.

2. The Case Made

2 2 2.1 The principal contention made on behalf of the Cunningham Group and Mr. Cunningham is to the effect that, properly construed, the term "non-suit" does not denote a finding on the merits such as would give rise to the application of the principle of res judicata. I will return to the relevant authorities in due course. However, reference is made to certain authorities from the latter part of the nineteenth century (that is before the Judicature Acts 1877-1888, and the Rules and Orders connected with same, were enacted and the largely equivalent English regime was adopted) from which it does appear that the term "non-suit", at the time, was used to describe a method by which proceedings could come to an end without a final determination by the court concerned on the issued raised in the relevant proceedings. In part, it would appear that the non-suit procedure was a means whereby a plaintiff could, in effect, withdraw his proceedings without placing a barrier in the way of being able to recommence the relevant proceedings. It would also appear that there may have been a form of imposed non-suit whereby the court could require a plaintiff to enter a non-suit in circumstances where the court was not satisfied that the plaintiff had established a prima facie case, thus bringing the proceedings to an end.

3 3 2.2 It must, of course, be recalled that very many proceedings, in those days, were conducted before a judge and jury, so that the role of the judge in such cases was to determine whether the proceedings could ultimately be left to the jury.

4 4 2.3 In essence, the case made on behalf of the Cunningham Group and Mr. Cunningham is that the position identified in the nineteenth century United Kingdom jurisprudence remains applicable in this jurisdiction today (at least in so far as an "imposed" non-suit is concerned) so that, it is said, the consequences of a party obtaining a non-suit at the end of the plaintiff's case does not absolutely debar the plaintiff concerned from raising any issues which were then before the court, on a subsequent occasion. Before going on to analyse that proposition it is next appropriate to briefly set out First Active's response.

3. First Active's Response

2 2 3.1 First Active accepts that, up to the passage of the Judicature Acts, there was distinction between a non-suit on the one hand and a dismissal of a plaintiffs claim on the other hand such that, at that time, a non-suit did not amount to a verdict or determination sufficient to debar the plaintiff concerned from raising again any of the issues which were before the court. However, it was argued on behalf of First Active that the form of non-suit that is referred to in the Victorian jurisprudence ceased to exist as a result of certain measures adopted in the course of the enactment of the Judicature Acts (which, it will be recalled, were pursued in a similar parallel fashion applicable, respectively, to Ireland on the one hand and England and Wales on the other hand) so that, it is said, the term "non-suit" no longer describes the nineteenth century procedure to which the relevant jurisprudence refers.

3 3 3.2 Rather, it is said, a non-suit in the Victorian form ceased to exist as a result of the passage of the Judicature Acts. However, it is said that the term continued to be used in this jurisdiction interchangeably with the term direction, such that there was no material difference between the term "non-suit" and "direction" both of which, it is said, amount to a dismissal on the merits such that any issues raised in the proceedings which were properly the subject of a non-suit, can be said to have been determined against the plaintiff concerned and be the subject, therefore, of the application of the doctrine of res judicata.

4 4 3.3 It is clear, therefore, that there is no dispute but that the relevant nineteenth century jurisprudence, which was relied on by the Cunningham Group and Mr. Cunningham, did once represent the law in this jurisdiction. For those reasons it will not be necessary to go into it in any great detail. The real issue between the parties is as to whether that jurisprudence has any continuing relevance in the early years of the twenty first century. Before going on to those question I should, however, briefly...