A.R v Ireland and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 05 March 2025
• Neutral Citation: [2025] IEHC 132
• Court: High Court
• Docket Number: Record No. 2024/2854P

Between

A.R.

Plaintiff

and

Ireland, The Attorney General, The Commissioner of An Garda Siochána and X.Y.

Defendants

[2025] IEHC 132

Record No. 2024/2854P

THE HIGH COURT

Interlocutory relief – Abuse of process – Bound to fail – Defendants seeking to strike out the proceedings – Whether the proceedings amounted to an abuse of process of the court and/or were bound to fail

Facts: The plaintiff sought interlocutory relief in terms designed to restrain the third defendant, the Commissioner of An Garda Síochána, and the fourth defendant from “besetting and/or harassing [the plaintiff]”. The plaintiff classed many of the fourth defendant’s actions as an investigating Garda or witness as “harassment”, an allegation repeated in the plaintiff’s oral submissions. The defendants applied to the High Court for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the proceedings on the basis that they disclosed no reasonable cause of action and/or amounted to an abuse of process of the court and/or were bound to fail, and/or had no reasonable chance of succeeding. In the alternative, an order was sought pursuant to the inherent jurisdiction of the court striking out the proceedings on the basis that they were bound to fail and/or are frivolous and/or vexatious and/or an abuse of process.

Held by Stack J that she harboured very significant doubts about the purposes for which the interlocutory relief was sought. Although it was clear to her that the plaintiff bore considerable ill-will towards his two ex partners, and although much of the criticism levied at the fourth defendant was due to the plaintiff’s perception that the fourth defendant had taken their side and not his, Stack J noted that they were not parties to the proceedings and therefore no relief was sought against them. She also found it notable that, despite the involvement of various Gardaí in the service and enforcement of the various barring, safety and protection orders obtained by both of the ex-partners, and in actually carrying out the bail checks to which the plaintiff objected, none of those other gardaí had been joined in the proceedings. By contrast, the fourth defendant had been singled out for the suit and it was difficult for Stack J to imagine that the reason was any other than that the fourth defendant was involved in the prosecution of the plaintiff for indictable criminal offences. As a result, Stack J had a very strong suspicion that the real purpose and aim of the proceedings was to create such a chilling effect that the prosecution which the Director of Public Prosecutions had directed to take place would be frustrated or impeded, or even to obtain an injunction which would prevent it going ahead.

Stack J held that such an injunction would be contrary to public policy and an abuse of process and proceedings designed to achieve it would have to be dismissed pursuant to the inherent jurisdiction of the court as constituting an abuse of process. However, as she was satisfied for other reasons that the proceedings were doomed to fail, she held that she would in any event strike out the proceedings on that basis.

Proceedings struck out.

JUDGMENT of Ms. Justice Stack delivered on 5 March, 2025 .

Introduction

1 . This is an application by the defendants for an order pursuant to O.19, r.28 of the Rules of the Superior Courts striking out the within proceedings on the basis that they disclose no reasonable cause of action and/or amount to an abuse of process of the court and/or are bound to fail, and/or have no reasonable chance of succeeding. In the alternative, an order is sought pursuant to the inherent jurisdiction of this court striking out proceedings on the basis that they are bound to fail and/or are frivolous and/or vexatious and/or an abuse of process.

2 . Traditionally, the distinction between an application pursuant to O.19, r.28 and an application pursuant to the inherent jurisdiction of the court to dismiss a claim has been bound to fail was grounded on the fact that, in the latter instance, a court could look at the evidence in the case and, if satisfied that there is no evidence in support of the claim and no prospect of evidence coming to light during a pre-trial procedure such as discovery or interrogatories, the application could be dismissed, whereas, when exercising its jurisdiction pursuant to O.19, r.28, the court could only look at the pleadings to see if they disclosed a cause of action known to law. As a result, applications pursuant to the inherent jurisdiction of the court tended to be made where the relevant evidence was solely documentary in nature, such as where, in an application for specific performance, the only document put forward was a note, a memorandum of an agreement to sell land did not reflect a concluded agreement: see Barry v. Buckley [1981] I.R. 306.

3 . Order 19 rule 28 was amended by substitution by the Rules of the Superior Courts (O.19) ( S.I. No. 456 of 2023) and the court may now, in considering application under O.19, r.28, “if appropriate” have regard not only to the pleadings but to “evidence in any affidavit filed in support of, or in opposition to, the application.”

4 . It is not clear whether the purpose of the new O.19, r.28 (3), which permits — “if appropriate” — consideration of affidavit evidence is designed to entirely supplant the inherent jurisdiction recognised in Barry v. Buckley, or whether it is designed to supplement the jurisdiction previously enjoyed under the old O.19, r.28, which permitted a court to look only at the pleadings. Either way, the importance of the constitutional right to litigation is such that any reliance on affidavit evidence in a motion of this kind must be confined to a consideration of admitted or indisputable facts.

5 . Before considering the application, I would like to record that, as there is reference in the papers to the identity of parties and to in camera proceedings in which they have been involved, I have directed that the application would be heard in camera and that the name of the plaintiff and that of the other parties to the family law proceedings in question would be redacted from the published judgment. I have also avoided referring to the location of any property or District Court in case that would serve to identify the parties and their children. This is consistent with the approach in cases such as O.N. v. McD. [2013] IEHC 135, referred to further below.

6 . I have also redacted the identity of the fourth defendant as his role in those proceedings is referred to in this judgment. The fourth defendant is a member of An Garda Síochána and the reasons why he has been named as a defendant will become apparent.

Factual Background

7 . Before turning to the statement of claim, and in order to put this application in its proper context, it is necessary to say something about the various family law and criminal proceedings in which the plaintiff has been embroiled for over three years now. Before doing so, it should be noted that the fourth defendant, who as previously stated is a member of An Garda Síochána, has been involved in the investigation and prosecution of the plaintiff for certain criminal offences which the DPP has directed should be tried in indictment, and has, in response to a summons, attended certain family law proceedings, including child custody proceedings involving the plaintiff

8 . On 11 January, 2022, an application for an interim barring order was made by A.B., the mother of some of the plaintiff's children. That interim barring order was granted. However, it was almost immediately breached by the plaintiff, who sent a text message contrary to its terms to the complainant on 12 January, 2022. The plaintiff was arrested for that breach, which was an offence contrary to s.33 (1) of the Domestic Violence Act, 2018, and remanded on bail.

9 . The interim barring order became final on 17 January, 2022. The plaintiff did not attend, but the District judge was satisfied that he had been served with notice of the hearing date. The plaintiff acknowledges that he was served with the interim barring order which notifies him of the date of hearing, but complains that the Gardaí told him it was in fact 18 January, 2022. The District judge being satisfied as to service, the order became final on 17 January, 2022, and this operated to bar the plaintiff from a residence until 16 January, 2025. The plaintiff appealed that order and his appeal was unsuccessful.

10 . On 12 January, 2022, another woman, C.D., the mother of other children of the plaintiff, applied for a protection order in the District Court. This ultimately led to the making of the safety order in the District Court on 24 March, 2022.

11 . On 24 January, 2022, the plaintiff sent another text in breach of the barring order obtained by A.B. He claims that a retired member of An Garda Siochána persuaded him to send this text in innocuous circumstances, reassuring him that it would not count as a breach.

12 . The plaintiff was ultimately prosecuted for both this breach and the earlier breach of January, 2022, and pleaded guilty to both charges on 7 April, 2022. While the plaintiff complained that he was advised to plead guilty by his solicitor, there is no doubt that he did in fact plead guilty. He also complains that he thought he would be released on bail conditions on entering the guilty plea, but in fact remained subject to them quite a lengthy period of time, the proceedings not ultimately being disposed of until 28 March, 2023, at which point it appears the plaintiff was bound over to the peace for a period of one year. The plaintiff complains that this delay was contributed to by the delay of the relevant probation officer in providing the necessary report.

13 . During the currency of the protection order granted to C.D. on 12 January, 2022, a complaint was...