Raymond Sweeney & Bus Atha Cliath

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill
• Judgment Date: 30 January 2004
• Neutral Citation: 2004 WJSC-HC 10954
• Court: High Court
• Date: 30 January 2004

2004 WJSC-HC 10954

THE HIGH COURT

9201p/2000

RAYMOND SWEENEY & BUS ATHA CLIATH

RAYMOND SWEENEY

PLAINTIFF

AND

BUS ÁTHA CLIATH/DUBLIN BUS

AND

PAUL FLYNN AND NICHOLAS SWEENEY

DEFENDANTS

Citations:

KINSELLA V BYRNE 1940 74 ILTR 157

O'GRADY V LAOIS CO COUNCIL UNREP SUPREME 18.5.1998 1998/28/11386

MCCAULEY V MCDERMOT 1997 2 ILRM 486

LAWLESS V BUS EIREANN 1994 1 IR 474

CARL ZEISS STIFTUNG V RAYNER & KEELER LTD (NO. 2) 1967 1 AC 853

MCGUINNESS V MOTOR DISTRIBUTORS LTD UNREP SUPREME 17.7.1997 1998/8/2461

GROOM V CROCKER 1939 1 KB 194

Synopsis:

PRACTICE AND PROCEDURE

Res judicata

Issue estoppel - Whether the issues raised between the plaintiff and the first and second named defendants were res judicata and whether the plaintiff was estopped and precluded from maintaining his claim by virtue of the previous consent order striking out the Circuit Court proceedings relating to the incident the subject matter of these proceedings (2000/9201p - O'Neill J - 30/1/2004)

Sweeney v Bus Atha Cliath/Dublin Bus - [2004] 1 IR 576

Facts: The plaintiff was involved in a road traffic accident on 15th September, 1997, when the motor vehicle he was driving, which he claimed was owned by the third named defendant and whilst he was acting in the course of his employment with the third named defendant was allegedly caused to lose control as a result of the dangerous and defective condition of the motor vehicle. More specifically, the plaintiff claimed that the vehicle he was driving came to a halt on the roadway and while so stationary it was struck by a motor vehicle owned by the first named defendant and driven by the second named defendant. As a result of this collision the plaintiff allegedly sustained catastrophic personal injuries. In pursuance of the plaintiff’s claim a plenary summons was issued and served. The first and second named defendants delivered their defence on 10 January, 2002. In the meantime the first named defendant issued its own proceedings in the Circuit Court by Civil Bill dated 17th August, 1998 against the plaintiff in which it claimed the sum of £6,655.68 as damages for negligence arising out of the aforementioned road traffic accident. Subsequently a defence was delivered on behalf of the plaintiff on 4th January, 1999 which did not deny or in any way contest liability but merely denied the loss/damage allegedly sustained by the first named defendant. That matter subsequently came on for hearing before the President of the Circuit Court on 1st March, 1999. However the matter was settled between the parties and an order of the Court on consent was made striking out the first named defendant's action and awarding costs in its favour.

The defence delivered on behalf of the first and second named defendants in the High Court proceedings effectively claimed that by virtue of the previous Circuit Court proceedings, in which the plaintiff admitted liability in respect of the defendant’s claim and settled the defendant’s claim, the issues between the parties were res judicata and accordingly the plaintiff was estopped and precluded from maintaining his claim in the subsequent action against the first and/or second named defendants. Consequently this matter came before Mr. Justice O’Neill in the High Court on foot of an order of Mr Justice Johnson made on 24th March, 2003 ordering that without further pleadings that issue would be tried as a preliminary issue.

Held by O’Neill J in determining the preliminary issue in favour of the plaintiff: 1. That the kind of res judicata the court was concerned with in this application was issue estoppel.

2. That the requirements necessary to establish the doctrine of res judicata were; (1) that the same question had been decided, (2) that the judicial decision which was said to create the estoppel was final and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel was raised or their privies.

McCauley v McDermot and Another [1977] 2 I.L.R.M. 486 followed.

3. That the parties to the high court proceedings were the same as the parties to the circuit proceedings notwithstanding the fact that the second named defendant was not a party to the earlier proceedings because it was not alleged on behalf of the plaintiff in the high court case that his interest was in any way different to that of the first named defendant so far as the issue of liability was concerned.

4. That the concession of the issue of liability by the plaintiff in the circuit court proceedings was tantamount to a determination on that issue against him.

5. That where by consent a court pronounces a judgment in favour of a party to litigation that gives rise to an estoppel in respect of those issues which were necessarily determined for the purposes of that judgment.

Kinsella v Byrne [1940] 74 ILTR Vol. 157 followed.

6. That where the proceedings are brought to a conclusion by an order simply striking out the proceedings, it cannot be said that any judgment is given or that any judicial decision is made. The essence of a strike out of the proceedings is to terminate the proceedings without any recourse to a judicial decision on the claims made in the proceedings. A judgment by consent is wholly different because what happens there is that the court with the agreement of the parties moves to an agreed determination on the claims made in the proceedings. In relation to the striking out of proceedings it cannot be said without further evidence what the outcome of the case has been between the parties, and it cannot be inferred from a strikeout what issues are necessarily determined. Hence an order striking out the proceedings although final cannot satisfy an essential requirement in order to invoke the doctrine of res judicata.

7. That in deciding the preliminary issue it was also necessary to consider whether or not the continuance of the proceedings sought to be precluded would amount to an abuse of the process of the courts and accordingly whether the court should invoke its inherent jurisdiction to strike out that proceeding as being an abuse of process. This jurisdiction should be exercised with considerable caution.

8. That in determining the issue of abuse of process the court was required to achieve a balance between the right of access to the courts and the finality of litigation. In this regard it was relevant that the plaintiff had no control over the earlier litigation and also that there was an enormous disparity between the potential size of the claim in the high court proceedings and the claim made in the circuit court proceedings.

Reporter: L. O’S.

1 Mr. Justice O'Neill delivered the 30th day of January, 2004.

2 This matter came before me on foot of the order of Johnson J. made on the 24 ^th March, 2003 whereby he ordered that without further pleadings, the following preliminary issue would be tried:-

"Whether the issues raised between the plaintiff and the first and second named defendants the subject matter of these proceedings are res judicata and whether the plaintiff is estopped and precluded from maintaining his claim in the above entitled proceedings against the first and/or second named defendants, their servants or agent."

BACKGROUND

3 These proceedings arise out of a road traffic accident which occurred on the 15 ^th September, 1977. At the time the plaintiff was driving a motor vehicle which it is claimed was owned by the third named defendant and while so driving it is further claimed the plaintiff was acting in the course of his employment with the third named defendant. The plaintiff claims that this motor vehicle was caused to go out of control when the plaintiff was driving it along Kilakee Road, Firhouse, Dublin 24, as result of the dangerous and defective condition of the motor vehicle in question. The plaintiff claims that the motor vehicle came to a halt on the roadway and while so stationery it was struck by a motor vehicle owned by the first named defendant and driven by its servant or agents, the second named defendant. As a result of these events it is claimed that the plaintiff has suffered catastrophic personal injuries which were caused by the negligence and breach of duty of all of the defendants, the first named defendant being vicariously liable for the negligence of the second named defendant.

4 In these proceedings the plenary summons was issued on the 8 ^th August, 2000, the statement of claim was purported to be served on the 27 ^th July, 2000, and the defence of the first and second named defendants was delivered on the 10 ^thJanuary, 2002. In the interval particulars were sought by the first and second named defendant and eventually replied to by replies dated the 14 ^th December, 2001.

5 In the meantime Bus Átha Cliath/Dublin Bus issued its own proceedings in the Circuit Court by Civil Bill dated the 17 ^thAugust, 1998 against Raymond Sweeney, the plaintiff in these proceedings claiming the sum of £6,655.68 as damages for negligence arising out of the same road traffic accident. The damage in respect of which this claim was made was the repairs of the bus and its loss of use for a period of some 49 days. An appearance was entered on behalf of Raymond Sweeney by Messrs. O'Donnell Solicitors of 30 Lower Hatch Street, Dublin 2. Particulars of the claim were sought and given a defence was delivered by the said solicitors on behalf of Raymond Sweeney on the 4 ^th January, 1999. The copy of the defence put in evidence in these proceedings says the defence was delivered on 4 ^thJanuary, 1998 which I assume to be in error and that the correct date is the 4 ^th January, 1999. This error is of no importance. The defence delivered did not deny or in any way contest liability and was confined to the following terms:-

6 1. The plaintiff has not suffered alleged or any loss or damage...