Moyne v Todd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 19 April 2024
• Neutral Citation: [2024] IECA 81
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2023/139

Between/

Alan Moyne

Plaintiff/Appellant

and

Sam Todd, Eugene F. Collins, Paul Dempsey, Abigail Butler, Mark Walsh, Ailish Colgan, Karl Smith, Patrick Mabry and Steve Rodgers

Defendants/Respondents

[2024] IECA 81

Power J.

Butler J.

O'Moore J.

Court of Appeal Record Number: 2023/139

High Court Record Number: 2020/7098P

THE COURT OF APPEAL

Abuse of process – Bound to fail – Vexatious action – Appellant appealing against a decision striking out the action against the respondents – Whether the appellant’s right to a fair hearing was infringed

Facts: The plaintiff/appellant, Mr Moyne, appealed to the Court of Appeal against a decision of the High Court (Roberts J) striking out the action against the defendants/respondents, Mr Todd, Mr Collins, Mr Dempsey, Ms Butler, Mr Walsh, Ms Colgan, Mr Smith, Mr Mabry and Mr Rodgers, on the grounds that it was vexatious, an abuse of process and bound to fail. The grounds of appeal advanced by the plaintiff were as follows: (1) “The learned judge has infringed the Applicant’s right to a fair hearing as protected by Article 6.1 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Right (sic) of the European Union.” (2) “The learned judge erred in law and reasoning in ruling that malicious falsehood, loss of reputation and breach of constitutional rights falls within the scope of defamation.” (3) “The learned Judge erred in law and reasoning in not considering the uncontested evidence that the Plaintiffs have never had a vested interest in the property the subject matter of the Circuit Court Proceeding.” (4) “The learned Judge erred in law and reasoning in not considering the Adverse Possession of the property by a third party and the intent and knowledge of the Plaintiffs in the Circuit Court Proceedings.” (5) “The learned Judge erred in law and reasoning that the Circuit Court Proceedings were lawful and therefore properly constituted as a Court with Jurisdiction and subject matter Jurisdiction, forming a Court in which the defendants could be afforded the protection of absolute privilege.” (6) “The learned Judge erred in law and reasoning that absolute privilege be afforded to parties who with intent and in full knowledge engaged in unlawful proceedings with criminal intent.” (7) “The learned Judge erred in law and reasoning in not considering the perjury within the affidavit of [Mr] Todd on behalf of all the Defendants.”

Held by O’Moore J that: (1) the written submissions of the appellant did not refer at all to Art. 47 of the Charter or Art. 6.1 of the Convention and this ground of appeal was not argued in any coherent way; (2) regarding the claim for loss of reputation, the trial judge did not err in finding that this was in reality a claim in defamation, and regarding the claim for malicious falsehood, that part of the appellant’s case would be too complex, to use the phraseology of Moylist Construction Limited v Doheny [2016] 2 IR 283, to decide on such a motion; (3) this did not give rise to a coherent ground of appeal against the High Court judgment; (4) whether or not there was adverse possession of the property was irrelevant to the grounds upon which the High Court judge found that the action was bound to fail; (5) to argue that the High Court judge was wrong in finding that there was a sitting of the Circuit Court was without merit; (6) and (7) as a matter of logic, it was difficult to understand how any perjury (even if this were established) in the affidavit grounding the motion to strike out the proceedings could justify the continuation of proceedings which the trial judge found were frivolous and vexatious, an abuse of process, and/or bound to fail.

O’Moore J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 19 ^th day of April 2024

1 . This is my judgement on an appeal by the plaintiff, Mr. Moyne, against a decision of the High Court (Roberts J.) striking out this action as against all defendants on the grounds that it is vexatious, an abuse of process and bound to fail.

2 . The proceedings arise from a hearing before the Circuit Court (Judge Keenan Johnson) on the 7 ^th November, 2019. On that day, Mr. Moyne made an application to the court for a copy of the DAR in respect of an earlier hearing. This application was made in proceedings entitled Tanager DAC v Alan Moyne & Elena Moyne. Elena Moyne is Mr. Moyne's wife. During the course of that hearing, counsel for Tanager who is now the first defendant to these proceedings (Mr. Todd) made the following statement:-

“In the ordinary course of it, judge, there is no issue in respect of the taking up of the DAR. I think what needs to be pointed out is that Mr. Moyne is appealing an order of this court made on the 30 ^th July. That order was adjourning the substantive proceedings but it also made a direction that a copy instrument from the Property Registration Authority be provided to the plaintiff and that arose because there was an issue in the registration of title on the property. Basically, numbers one and two had become reversed, the court may recall.

Judge: Oh yes. I remember it, yes.”

3 . Critically, Mr. Todd went on:-

“And the issue is Mr. Moyne is appealing that court order releasing the document to the plaintiff. Now, two things arise. The first is that document is already in my possession and the second is, as has become apparent because Mr. Moyne is now trying to suppress that document, he exhibited an altered copy that landed squarely in his favour and put it before the court and on that and on that -”

4 . Mr. Moyne then interrupted, claiming that Mr. Todd was accusing him of “committing perjury before the Court.”

5 . Mr. Todd continued;

“ Well, I …what I would suggest, Judge, if the Court wishes to review the document I have and the document that Mr. Moyne swore that was a true copy of the instrument provided from the PRA, because they are different and the only differences relate to areas where his name appears as purchaser of the property.”

6 . This is the central exchange that has given rise to the current proceedings. It will be seen immediately that Mr. Todd's statement is, at least on the face of it, one made in a court. This statement has caused Mr. Moyne not only to sue Mr. Todd, but also to sue a number of other parties. Those parties are the firm of Eugene F. Collins (the second defendant), partners in the firm of Eugene F. Collins (the third, fourth and fifth defendants) and directors of Tanager DAC (the sixth, seventh and eighth defendants). Before considering the arguments made on appeal against the order of the High Court, it is necessary to put the events of the 7 ^th November, 2019 in context. It is then necessary to consider the claims made by Mr. Moyne in the current action. I will then summarise the judgment of the High Court, before moving on to describing and deciding the issues raised in this appeal.

The background to the events of the 7 ^th November, 2019

7 . In proceedings taken by Tanager DAC (“Tanager”) an order for possession was sought against Mr. Moyne and his wife Elena over property in County Westmeath. The possession proceedings bear the record number 2015/00035, which in itself indicates how long they have been ongoing. As part of his defence of the Circuit Court proceedings, Mr. Moyne asserted that the relevant property was not one in which he or his wife had a “vested interest”, as Mr. Moyne put it. In those proceedings, Mr. Moyne filed a motion seeking certain reliefs, including an order transferring the Circuit Court proceedings to plenary hearing. This motion was grounded on an affidavit dated the 5 ^th March, 2019, sworn by Mr. Moyne. In his affidavit, Mr. Moyne swore that the property (in respect of which possession was sought by Tanager) “has never been in the possession of the defendants”. At the hearing before this court, it was submitted by counsel for the defendants to these proceedings that documentation exhibited by Mr. Moyne to his affidavit of the 5 ^th March, 2019 had been selectively assembled, and in particular that documentation identifying Mr. Moyne and his wife as the owners of the property had not been exhibited by him. Counsel for the defendants argued that this was a particularly pernicious omission by Mr. Moyne, in that pages had been removed from exhibited documents which had the effect of concealing the interest that the Moynes had in the relevant property. The submission made by counsel at the appeal hearing can be summarised in this excerpt from the transcript of the DAR (at p. 29):-

“So you had a situation which Mr. Moyne, on affidavit, had told the Circuit Court that he had never possessed this property and had no dealings with it. He exhibited what he said was a true copy of the relevant instrument, but omitted from that instrument, for whatever reason — I can't speak to his motivation — all of the pages that identify the property and identified him and his wife as the purchasers of that property.”

In his reply before this court, Mr. Moyne initially accepted the premise of this submission of counsel for the defendants/respondents, but he then changed his position.

8 . Given the possibility that, notwithstanding the decision of this court, this matter at some time may go to trial it would not be appropriate to express a view about the state of the documentation exhibited by Mr. Moyne with his affidavit of the 5th March, 2019. The summary I have provided is, however, both necessary and sufficient to understand the nature of the dispute between Tanager and Mr. Moyne when the matter came back before the Court on the 7th November, 2019. It should be said that, between the issuing of Mr. Moyne's motion in early March 2019 and the hearing on the 7th November of that year there had been an intermediate hearing before Judge Johnson on the 30 ^th July, 2019, at which time the...