O'N (J) v McD (S) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 22 March 2013
• Neutral Citation: [2013] IEHC 135
• Court: High Court
• Date: 22 March 2013

O'N (J) v McD (S) & Ors

BETWEEN

J.O'N.

PLAINTIFF

AND

S.McD, P.F, J.K.,

C.M., E.D., C.M.,

R.L., M.C.

AND A.K.

DEFENDANTS

[2013] IEHC 135

[No. 462 P./2012]

THE HIGH COURT

Litigation - Family law proceedings - Guardian ad litem - Reasonable cause of action - frivolous and vexatious proceedings - Rules of the Superior Court - Striking out of proceedings

Facts: The plaintiff and the ninth named defendant were husband and wife respectively who were involved in protracted family proceedings with custody and access to the two children of the marriage of key concern. On the 27 ^th January 2011, the court decided to appoint a guardian ad litem despite the objections of the plaintiff. This decision was eventually reversed by the same judge with the guardian ad litem stood down without any report or evidence having been offered. The initial decision gave rise to these proceedings brought by the plaintiff. As well as the plaintiff”s wife, the other defendants to the proceedings were all involved in the family proceedings in some fashion and included the plaintiff”s wife”s barrister and solicitor, the county registrar for the county where the family law proceedings were listed, the general practitioner of the plaintiff”s wife and daughter, the guardian ad litem who was ultimately stood down, a social worker, another general practitioner, and a relationship counsellor.

Eight of the nine defendants brought motions for proceedings to be struck out pursuant to O.19 r. 28 of the Rules of the Superior Courts on the basis that they did not disclose a reasonable cause of action and were frivolous and/or vexatious.

Held by Birmingham J that in terms of the motion of the guardian ad litem, the matter could be dealt with summarily. She was stood down shortly after appointment by which time she had only met the plaintiff”s daughter and not yet the son. She had provided no report or evidence to the court and complied with all orders or the court. As such, the proceedings were dismissed against her.

It had been noted that the plaintiff”s statement of claim pleaded an entirely different claim to that described in the plenary summons. It was also noted that the plaintiff acted as a litigant in person meaning the court would have been prepared to give the plaintiff a chance to regularise the pleadings if that was the only difficulty. However, the plaintiff”s proceedings brought more fundamental problems. The first and fifth named defendants, the plaintiff”s wife”s barrister and solicitor respectively, were clearly being sued for comments they”d made in their capacity as advocate and representative despite the fact s. 17 of the Defamation Act 2009 afforded absolute privilege to them and was clearly applicable. The claim against them was struck out for the reasons advanced. The plaintiff had also made a claim for stress and damages for mental trauma from the defendants generally despite the fact an application to the Personal Injuries Assessment Board seeking authorisation to issue proceedings had not been made. Without this, the court had no jurisdiction to entertain the personal injuries claim.

In relation to the second named defendant, the country registrar, it was held that the plaintiff had failed to particularise the claim that the registrar perverted the course of justice by purposefully and knowingly withholding prima facie evidence from the court. His motion was therefore also upheld. Likewise, no reasonable cause of action was outlined against the general practitioners, the third and seventh named defendants, nor the relationship counsellor or the plaintiff”s wife. It was further noted that the multiplicity of defendants clearly demonstrated that the plaintiff was prepared to initiate proceedings against the most minor of individuals involved in the family law proceedings, and were an obvious abuse of process. All motions were therefore upheld.

Order striking out proceedings against all defendants who brought a motion against the plaintiff.

RSC O.19 r28

GUARDIANSHIP OF INFANTS ACT 1964 S28

CHILDREN ACT 1997 S11

GUARDIANSHIP OF INFANTS ACT 1964 S20

GUARDIANSHIP OF INFANTS ACT 1964 S21

GUARDIANSHIP OF INFANTS ACT 1964 S22

GUARDIANSHIP OF INFANTS ACT 1964 S26

GUARDIANSHIP OF INFANTS ACT 1964 S29

EASTERN HEALTH BOARD v E & ORS (NO 2) 2000 1 IR 451 1999/11/2666

RSC O.19 r27

RAYAN RESTAURANT LTD v KEAN UNREP WHITE 17.1.2012 2012 IEHC 29

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED PARA 16.06

FARLEY v IRELAND & ORS UNREP SUPREME 1.5.1997 1998/6/1512

BULA HOLDINGS & ORS v ROCHE & ORS UNREP EDWARDS 6.5.2008 2008/5/773 2008 IEHC 208

DEFAMATION ACT 2009 S6

DEFAMATION ACT 2009 S17

DEFAMATION ACT 2009 S17(2)(G)

SHERRY v PRIMARK LTD T/A PENNEYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66

CUNNINGHAM v NORTH EASTERN HEALTH BOARD UNREP HEDIGAN 15.5.2012 2012 IEHC 190

CIVIL LEGAL AID ACT 1995 S5(1)

CIVIL LEGAL AID ACT 1995 S11(7)

CIVIL LEGAL AID ACT 1995 S28(5)

AL-KANDARI v J R BROWNE & CO 1988 1 AER 833 1988 QB 665 1988 2 WLR 671

TALBOT v MCCANN FITZGERALD & ORS UNREP HANNA 8.10.2010 2010/49/12319 2010 IEHC 383

DYKUN v ODISHAW ALBERTA COURT OF QUEENS BENCH 3.8.2000 2000 267 AR 318 2000 ABQB 548

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691

MCCABE v MIN FOR JUSTICE UNREP MURPHY 29.6.2006 2006/35/7390 2006 IEHC 208

ENNIS v BUTTERLY 1996 1 IR 426 1997 1 ILRM 28 1996/11/3271 1996 IEHC 51

KENNEDY v LAW SOCIETY OF IRELAND & ORS (NO 4) 2005 3 IR 228 2005 IESC 23

1 1. Before the Court are motions that have been brought by eight of the nine defendants, the exception is the sixth named defendant, C.M. who has not brought a motion. While the notices of motion brought by the defendants are not structured identically, in essence each of the defendants seeks to achieve the same objective. The defendants seek orders pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the plaintiff's claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious. The motions also seek an order pursuant to the inherent jurisdiction of the Court striking out the plaintiff's claim on the grounds that the proceedings are an abuse of process. Also before the Court are motions brought by the plaintiff to strike out the notices of motion brought against him by the first, third and seventh named defendants. These counter motions have not really been the focus of attention and instead the grounding affidavits in these cases have been regarded and dealt with as if they were affidavits in reply to the motions brought by the defendants and the affidavits on which those motions were grounded.

The background to the present applications

2 2. The background to the present applications is to be found in the fact that the plaintiff and the ninth named defendant, who is his former wife, have been involved in protracted and acrimonious family law proceedings. Issues relating to custody and access to the two children of the marriage have proved particularly difficult.

3 3. On the 12 ^th November, 2010, the family law proceedings were before His Honour Judge Michael White, as he then was. The question of the possible appointment of a guardian ad litem was canvassed and it appears that Judge White invited the parties to consider this. When the matter next appeared before Judge White on the 27 ^th January, 2011, the plaintiff, who at the time was represented by a solicitor, opposed the appointment of a guardian ad litem, while the suggestion was supported by the ninth named defendant. The fifth named defendant, E.D. acted as solicitor for her and the first named defendant was her counsel. Judge White decided to appoint the guardian ad litem. The matter was back in the Circuit Court on the 11 ^th May, 2011, when Judge White directed that no further action was to be taken on foot of his order providing for a guardian ad litem which had been made on the 28 ^th January, 2011. This was in a situation where a question had been raised as to whether there was jurisdiction to appoint a guardian ad litem in the course of family law proceedings. At a later stage Judge White reversed his decision regarding the appointment of a guardian ad litem and the guardian who had been nominated was stood down. It should be noted that no report was ever produced by the proposed guardian ad litem, nor did she ever give evidence at the hearing of the family law case. Notwithstanding that, the plaintiff has described the decision to appoint a guardian ad litem as the step that triggered the present proceedings. At this stage it may be noted that s. 28 of the Act of 1964, as inserted by s. 11 of the Children's Act 1997 makes provision for the appointment of guardian ad litem in family law cases in circumstances where this is necessary in the best interests of the child. However, while the bulk of the Children's Act 1997 came into operation one month after the date of its passing, this was not true in the case of s. 11 which inserted ss. 20, 21, 22, 26, 28 and 29 into the Act of 1964 which comes into operation on such day or days as may be fixed by the Minister by order. To date, s. 11 has not been commenced by ministerial order.

4 4. The plaintiff has launched the present proceedings naming nine persons as defendants. The first named defendant is a barrister who, as I have stated, acted as counsel on behalf of the plaintiff's former wife. The second named defendant is the county registrar for the county where the family law proceedings were listed. The third named defendant is a general practitioner. He has performed that role on behalf of the ninth named defendant and for "C", daughter of the ninth named defendant and the plaintiff. Following a consultation in July, 2010, he referred "C" to a child and...