Quinn v McDonough Breen Solicitors

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IEHC 747
• Docket Number: [2013 No. 11145 P.]
• Court: High Court
• Date: 21 December 2016

[2016] IEHC 747

THE HIGH COURT

White Michael J.

[2013 No. 11145 P.]

BETWEEN

MICHAEL QUINN

AND

BRIGID QUINN

PLAINTIFFS

AND

MCDONOUGH BREEN SOLICITORS, JOHN MCDONOUGH

AND

ALLIED IRISH BANKS PLC

DEFENDANTS

Practice & Procedures – O.19, r. 28 of the Rules of the Superior Courts – Dismissal of proceedings – Lack of cause of action – Res judicata

Facts: The third defendant/receiver had filed a motion for striking out the plaintiffs" claim for breach of contract and negligence. The other defendants, too, had joined in the motion. The third defendant claimed that the issue raised in the present proceedings were already dealt by High Court in another proceedings, which were upheld by the Court of Appeal and thus the doctrine of res judicata applied. The original dispute between the parties was related to the certain lands on which a legal charge was created by the plaintiffs in favour of the bank.

Mr. Justice White dismissed the plaintiffs' claim against the third named defendant as barred by the principal of res judicata. The Court held that the claim of the plaintiffs that they were the owners of the disputed lands against which injunctive relief had been obtained by the third defendant could not be sustained as the issue was decided in the earlier judgment of the High Court. The Court also held that the matters which were not covered in the judgment could not be litigated at present on account of lapse of time. The Court, however, granted liberty to the plaintiffs and the first and second defendants to raise matters in relation to negligence excluding those which had been covered by the earlier judgment of the High Court. The Court held that since the first and second defendants were not parties to the original proceedings, the rule in Henderson v Henderson did not apply to them.

JUDGMENT of Mr. Justice White delivered on the 21st of December, 2016

1 This matter comes before the court by way of various motions of the Defendants and Plaintiffs.

2 The third Defendant has issued a motion dated 4th September, 2014, returnable for 3rd November, 2014, seeking the following reliefs:-

(a) an Order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the Plaintiffs' Statement of Claim as against the third named Defendant on the grounds that it discloses no stateable cause of action;

(b) an Order pursuant to the inherent jurisdiction of this Honourable Court striking out the within proceedings as against the third named Defendant on the grounds that they are vexatious and/or an abuse of process and disclose no reasonable cause of action;

(c) in the alternative, an Order striking out the within proceedings on the grounds that each of the matters raised in issue is res judicata;

(d) further or in the alternative an order dismissing any matters raised in the within proceedings which might not be res judicata on the grounds that they ought to have been dealt with in proceedings entitled Allied Irish Banks plc v. Michael Quinn & Brigid Quinn [2011 No. 9355 P.].

This motion is grounded on the affidavit of Conal Regan, Manager of third Defendant sworn on 4th September, 2014.

3. The first and second Defendants issued a motion on 9th January, 2015, returnable for 17th February, 2015, seeking similar reliefs to the motion of the third Defendant. The motion is grounded on the affidavit of Conor Breen, Solicitor, sworn on 6th January, 2015.

4. Prior to the issue of these motions, the Plaintiffs issued a motion of 7th August, 2014, returnable for 3rd November, 2014, seeking to amend the Statement of Claim already served in the proceedings. That motion is grounded on the affidavit of Michael Quinn sworn on 7th August, 2014, exhibiting a draft amended Statement of Claim.

5. The first Plaintiff has sworn a number of affidavits in reply to the motions to dismiss. On 13th February, 2015, he swore an affidavit in reply to the motion of the third Defendant and on the same date he swore a separate affidavit in reply to the motion of the first and second Defendants. He swore a further detailed affidavit in reply on 25th November, 2015.

6. The Plaintiffs have also issued two other motions, a motion of 30th July, 2015, returnable for 12th October, 2015, seeking certain documentation from the first and second Defendants grounded on the affidavit of Michael Quinn sworn on 30th July, 2015, and a motion of 19th April, 2016, returnable for 26th April, 2016, seeking certain reliefs against the third Defendant. This motion is grounded on the affidavit of the first Plaintiff, Michael Quinn, sworn on 19th April, 2016. This affidavit also contains averments in defence of both motions to dismiss.

The Substantive Proceedings

7. The Plaintiffs issued a Plenary Summons on 14th October, 2013, seeking a number of reliefs against the Defendants. The Plaintiffs were directors and shareholders of Cloughvalley Stores Limited (hereinafter called 'The Company') which owned property marked A and D on the map attached to this judgment, and personally owned lands marked B and C on the said map.

8. The Plaintiffs allege breach of contract, breach of duty including statutory and fiduciary duty, breach of trust and negligence against the third Defendant. They also allege the third Defendant acted in an aggressive, unprovoked action against the Plaintiffs and improperly disclosed information to third parties, and failed to supervise agents and pursued legal proceedings against the Plaintiffs which were unfair and unprovoked. The Plaintiffs are claiming ownership of lands marked B and C on the attached map.

9. The Plaintiffs claim negligence, breach of contract, breach of trust, breach of duty including statutory and fiduciary duty against the first and second Defendants who during the relevant time acted as solicitors for the Company and received instructions from the Plaintiffs in their capacity as directors of the Company.

10. A Statement of Claim was served on 29th October, 2013. The third Defendant entered an appearance on 24th October, 2013 and the first and second Defendants entered an appearance on 6th November, 2013. The first and second Defendants served their defence in February 2014, and the third Defendant served its defence on 11th March, 2014.

Judgment Feeney J., [2011 No 9355P] Allied Irish Banks PLC -v- Michael Quinn and Brigid Quinn, 21st December 2012

11. Both Defendants have alleged that due to a judgment delivered by the late Mr. Justice Kevin Feeney on 21st December, 2012, in the matter entitled the High Court [2011 No. 9355 P.] Allied Irish Banks plc (Plaintiff) v. Michael Quinn and Brigid Quinn (Defendants) the proceedings now initiated by the Plaintiffs are res judicata and as a result are frivolous and vexatious. In addition, all three Defendants rely on the rule in Henderson v. Henderson to argue that if there are matters in the Plaintiffs' present action which were not dealt with by Feeney J., they cannot now proceed due to that rule.

12. To understand the nature of the claim of the Plaintiffs in these proceedings and the defence of the Defendants and the motions to dismiss, it is essential to quote extracts from the judgment.

13. Paragraphs 1.1,1.2,1.3,1.4,1.5,1.9,1.10, 2.2, 3.6, 4.1, of the judgment state as follows:-

'1.1 The defendants, Michael Quinn and Brigid Quinn, are husband and wife and are directors and shareholders of Cloughvalley Stores Ltd. (the Company). The Company has operated a petrol station and grocery shop from premises in Carrickmacross, County Monaghan, since in or about 1988. The petrol station and grocery shop is situated at Castleblayney Road, Carrickmacross, County Monaghan. The garage and shop premises have been altered and extended since the Company started to trade. Prior to 2006 the Company proposed to redevelop the Carrickmacross site where the Company's garage and shop were situated and to develop a larger convenience supermarket or store and to rebuild the petrol station. This redevelopment was duly carried out on the lands where the original petrol station and shop were located and also on lands adjacent to those lands. It is the lands on which the redevelopment and construction were carried out which are central to the claim in this case. There are four adjoining plots of lands that I must consider in relation to the claim herein. The four plots are marked on a Land Registry map which was attached to and included in the schedule to the plenary summons. A copy of that map is Schedule A to this judgment. That map identifies four separate plots, namely, Plot A, Plot B, Plot C and Plot D. In this judgment I will follow the same designation in relation to each of the four plots. Plot A consists of 0.29 acres and is land which is held by the Company on foot of a deed of conveyance dated 1st July, 1988 between Patrick Ward and Brigid Ward and the Company. Plot B consists of 0.586 acres and Plot C consists of 0.58 acres and both of those plots are held by the defendants personally. Plot D consists of 0.63 acres and is land held by the Company on foot of a 999 year lease to the Company from Carrickmacross Town Council. Plot D is not in issue in this case.

1.2 The building from which the Company carried on the business of a shop and petrol station was originally contained entirely within Plot A. The Company expanded its premises on a number of occasions and the enlarged building extended from Plot A onto Plot B and thereafter was located mainly on Plot A but also in part on Plot B. The largest development carried out by the Company took place in 2006 and it is that development which forms the backdrop to these proceedings. The 2006 development resulted in the Company building a supermarket and retail units on Plot A and also on a significant portion of Plot B. The petrol pumps and canopies were relocated and extended in part on to Plot C. Plot C also has car parking which is used for the...