Morris v Marine Hotel (Sutton) Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 22 March 2019 |
| Neutral Citation | [2019] IECA 85 |
| Docket Number | Record Number: 2016/543 |
| Court | Court of Appeal (Ireland) |
| Date | 22 March 2019 |
AND
[2019] IECA 85
Whelan J.
Whelan J.
Baker J.
Costello J.
Record Number: 2016/543
THE COURT OF APPEAL
Instalment orders – Reasonable cause of action – Delay – Appellant seeking to appeal from the judgment and orders of the High Court – Whether delays on the part of the respondents in delivering a defence precluded them from moving the application to dismiss
Facts: The appellant, Mr Morris, on the 7th September, 2015, instituted proceedings before the High Court. The statement of claim was subsequently delivered on the 19th October, 2015. In essence two key reliefs were sought: (a) an order prohibiting the respondents, Marine Hotel (Sutton) Ltd, Grand Hotel Malahide Ltd, Mr A Ryan, Mr M Ryan Jr, Ms Wyse and Ms McCorry, from taking steps to enforce three instalment orders made against the appellant in 2009 in the District Court; and (b) an order directing the respondents to repay to the appellant sums paid by him from time to time on foot of each of the three said instalment orders and in compliance with same. On the 27th October, 2016, the High Court (Gilligan J) ordered that the action and proceedings be struck out pursuant to O. 19, r. 28 of the Rules of the Superior Courts on the bases that the claims failed to disclose a reasonable cause of action and that they were frivolous and vexatious. The court made a further order, in the alternative, that the action be struck out pursuant to the inherent jurisdiction of the court on the basis that the appellant’s claim was entirely devoid of merit and had no reasonable chance of success, being frivolous or vexatious and an abuse of process and based on serious allegations without any or any adequate foundation. The appellant appealed to the Court of Appeal against the judgment and orders of Gilligan J. The notice of appeal essentially identified two grounds: first, that the respondents’ motion to strike out should not have been entertained by the High Court until after their defence had been delivered and arguably until after the pleadings were closed; second, that delays on the part of the respondents in delivering a defence precluded them from moving the application to dismiss.
Held by Whelan J that the determination and orders of the High Court were correct and ought not to be interfered with. Whelan J held that the proceedings disclosed no reasonable cause of action.
Whelan J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against the judgment and orders of Mr. Justice Gilligan made in the High Court on the 27th October, 2016 wherein he ordered that the within action and proceedings be struck out pursuant to O. 19, r. 28 of the Rules of the Superior Courts on the bases that the claims failed to disclose a reasonable cause of action and that they were frivolous and vexatious. The court made a further order, in the alternative, that the action be struck out pursuant to the inherent jurisdiction of the court on the basis that the appellant's claim was entirely devoid of merit and had no reasonable chance of success, being frivolous or vexatious and an abuse of process and based on serious allegations without any or any adequate foundation.
On the 7th September, 2015 the appellant instituted the within proceedings before the High Court. The statement of claim was subsequently delivered on the 19th October, 2015. In essence two key reliefs were sought: -
(a) an order prohibiting the respondents from taking steps to enforce three instalment orders made against the appellant in 2009 in the District Court; and
(b) an order directing the respondents to repay to the appellant sums paid by him from time to time on foot of each of the three said instalment orders and in compliance with same.
To understand the ambit of the proposition being advanced in the statement of claim, it is necessary to consider the instalment orders in question. In late 2007 the appellant was an objector to the annual licensing renewal applications made on behalf of the first and second named respondents in relation to the Marine Hotel, Sutton and the Grand Hotel, Malahide in Dublin. His objections were unsuccessful. At the District Court level costs were measured and ordered against him. The appellant appealed the decision of the District Court unsuccessfully resulting in further costs orders being made against him. Ultimately, two orders for costs were made against him in the Circuit Court in 2008 and were duly taxed by the County Registrar. The first and second named respondents took steps to enforce the said costs orders against the appellant resulting in the following orders being made, all of which are extant: -
(i) On the 12th June, 2009, the first instalment order was made in the sum of €4,848.01 plus costs of €212.78, repayable by 48 monthly instalments of €100 each plus €48.01 as a final instalment to the first named respondent.
(ii) The second instalment order is dated 23rd October, 2009 and provides for the payment of €5,600.64 plus €245.29 by 93 monthly instalments of €60.00 each together with one final instalment of €20.64 to the second named respondent.
(iii) The third instalment order was also made on the 23rd October, 2009 and provides for the repayment by the appellant of €11,293.85 plus €283.38 by 188 monthly instalments of €60.00 each and one final instalment of €13.85 to the first named respondent.
Subsequently, on the 30th October, 2012 the appellant obtained variation orders in the District Court in respect of the said instalment orders, such that, with effect from the 30th October, 2012 his repayment obligations on foot of the three instalment orders was in total €75.00 per month. Up until the 26th June, 2014 the appellant was in substantial compliance with the instalment orders as varied.
By letter, 25th July, 2014 the appellant, who had fully engaged with the taxation process in regard to the Circuit Court orders for costs, and by then had been substantially complying with the instalment orders for over 4 years, purported to introduce new conditions as follows: -
‘… before I make any further payment I require from yourselves: -
(1) full statement of all payments made by me to yourselves to date;
(2) full, itemised and exhaustive inventory of all costs awarded against me.’
On the 4th September, 2014, Orpen Franks, solicitors for the first and second named respondents, responded outlining the history of the orders, including the instalment orders that were extant, indicating that as of the 25th July, 2014 the balance due and owing by the appellant was €14,903.95. For convenience, a list of the payments made to date and detailing the amounts of same was annexed to the letter. It noted that the respondents were entitled to issue a summons ‘which may lead to you being arrested or imprisoned for a period of up to three months.’ On the 7th September, 2015 the appellant issued the plenary summons.
The appellant is self-represented. His statement of claim is dated the 19th October, 2015. It purports to invite some or all of the respondents ‘to treat of a resolution to and/or settlement of the proceedings herein’. It references the letter of demand from the respondents” solicitor dated 1st September, 2015 which pertains to the accrued arrears then outstanding on foot of the instalment orders as varied on the 30th October, 2012. It pleads that the said demands are unreasonable, excessive, punitive and effectively a criminal sanction.
The statement of claim further pleads that the demands to comply with the extant instalment orders, as varied, are inequitable, odious, unwarranted, worthy of judicial review and possibly fraudulent. It pleads that any claims by the respondents for any payment should be disqualified because of laches or gross laches on the part of the respondents. It pleads that the appellant was of the opinion that any monies paid by him should be returned to him forthwith with additional payment of interest. In essence, the appellant seeks a permanent prohibition on the continued enforcement of the instalment orders ‘…in relation to any outstanding debt which the Plaintiff owes, might owe or which the Defendants perceive the Plaintiff to owe them’.
The formal letter of the 1st September, 2015 from the respondents” solicitors, which appears to have triggered the issuing of the plenary summons on the 7th September, 2015, stemmed from the fact that after the 26th June, 2014 the appellant had failed to make any of the payments due on foot of the operative instalment orders. The appellant's response on the 2nd September, 2015 by letter stated: -
‘I deny your unfounded, false and misleading claim that I have “failed and refused” to comply with Orders of the Court.’
The letter continues: -
‘Your client has inordinately delayed with serving any kind of notice of enforcement upon me, and I do not accept that the aforesaid letter of yesterday is adequate notice of same.’
The letter raises a specific query regarding a counsel who had represented the respondents in the District Court and at Circuit Court level in regard to the objections to the renewal of the respondents” licences. He called upon the respondents ‘to state the precise date of when the barrister, who you cite as “senior counsel” actually took silk.’
The appellant issued a notice of motion for judgment in default of defence on the 11th December, 2015. The respondents countered on the 22nd December, 2015, issuing a notice of motion for orders pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the plenary summons and the...
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