O'Reilly McCabe v Minister for Justice & Patrick Cusack Smith & Company (Agents of Thomas McCabe, Ward of Court & Minor)
|07 July 2009
| IESC 52
|[Record No: 288/2006]
|07 July 2009
 IESC 52
THE SUPREME COURT
PRACTICE AND PROCEDURE
Dismissal of proceedings
No reasonable cause of action - Allegations that wardship order made - Allegations of professional negligence - No wardship order made - Whether action frivolous and vexatious - Whether claim abuse of process - Jurisdiction where conflict of fact - Nature of conflicted fact - Lay litigant - Issac Wunder order - Whether appropriate to make Issac Wunder order - Fay v Tegral Pipes Ltd  IESC 34 and Barry v Buckley [ applied - Rules of the Superior Courts 1986 (SI 15/1986) O 19, r 27 - Plaintiff's appeal dismissed & Issac Wunder order granted (288/2006 - SC - 7/07/09)  IESC 52
McCabe v Minister for Justice and Cusack
Facts: The appellant appealed against the High Court’s ruling on three motions. In relation to the first motion filed on behalf of the first named respondent, the learned High Court Judge made an order dismissing the appellant’s action for negligence on the grounds that the appellant had no reasonable action against that respondent and/or that the appellant’s claim must fail, that the action be dismissed on the grounds that the proceedings were vexatious/constituted an abuse of the court, that the appellant be restrained from making any further application in this matter on the institution of further proceedings without the leave of the High Court and further that the appellant pay the respondent’s costs of the motion. The High Court made similar orders in relation to a similar motion brought by the second named respondent. The High Court also refused the appellant’s application by way of motion to strike out the defense of the respondents for failure to comply with an order for discovery. The motions arose out of the appellant’s claim that the respondents owed the appellant and her five children a duty of care to disclose the legal status of her now ex-husband, who suffered post traumatic organic brain damage following a road traffic accident in 1965, whereupon it was claimed he was taken into wardship as a minor. The appellant claimed that her marriage was a nullity and she suffered loss and damage as she was unable to enforce any of her marital rights. The first named respondent claimed that the appellant previously instituted the same or substantially the same action as this action against the respondent. Both respondents deny that the appellant’s ex-husband was ever a ward of court and the learned High Court Judge in this case found as a fact, based on evidence from the Registrar of Titles and the Registrar of the Office of Wards of Court that the appellant’s ex-husband was not made a ward of the High Court in 1965 or at any time thereafter. Consequently, it was held that no issue in relation to any possible duty of disclosure on the part of either defendants arose.
Held by the Supreme Court; Denham J. (Kearns, Macken JJ) in dismissing the appeal: That the law in relation to the respondents’ motions was clear and was stated by McCracken J. in Fay v Tegral Pipes Limited  2 I.R. 261. The learned trial judge in this case identified the correct principles of law and applied them to the motions in this case. The kernel of this case related to wardship. However, there was evidence, which was previously made available to the appellant, that the appellant’s husband was never a ward of court. Consequently, there was clear evidence upon which the learned trial judge could and did rest his decision to strike out the appellant’s action. Furthermore, it was quite clear that there had been an abuse of the court process by the appellant over many years.
Judgment delivered by Denham. J. [nemdiss]
1. This is an appeal brought by a lay litigant, Carmel Rose O'Reilly McCabe, the plaintiff/appellant, referred to in this judgment as "the appellant", from the order and judgment of the High Court given on the 29th day of June, 2006.
2. There were three motions before the High Court.
3. The first motion was filed on behalf of the Minister for Justice, "the Minister", on the 15th February, 2005, seeking an order dismissing the action brought by the appellant on the grounds that the appellant had no reasonable action against the Minister and/or that the appellant's claim must fail against the Minister; also an order was sought dismissing the plaintiff's action on the grounds that the proceedings are vexatious and/or that they constitute an abuse of the process of the Court; also, an order was sought restraining the appellant from instituting further proceedings without first obtaining the leave of the High Court.
4. The second motion was filed on behalf of Patrick Cusack Smith & Co., the second named defendants, "the solicitors". The second motion sought an order striking out the appellant's action on the grounds that it was clearly unsustainable, was bound to fail, was frivolous and/or vexatious, and was an abuse of the process of the courts. Further, an order was sought striking out the appellant's claim on the ground that it disclosed no reasonable cause of action and/or was frivolous and/or vexatious. Also, an order was sought restraining the appellant from instituting any further proceedings against the solicitors without leave of the High Court.
5. The third motion was brought by the appellant seeking an order striking out the defence of the Minister for failure to make discovery of documents pursuant to order of the High Court dated the 26th April, 2005, and for an order striking out the defence of the solicitors for having refused and neglected to make discovery of documents in terms of the order of the High Court of the 26th April, 2005. An order for directions was also sought as to the trial of the issue of facts having regard to the fraudulent concealment alleged against the defendants.
6. The proceedings to which the three motions refer were brought by the appellant against the Minister and the solicitors. In the plenary summons the appellant's claim is for negligence and for the wrongful birth of five children.
7. In the statement of claim the appellant claims that the Minister and the solicitors owed the appellant and her five children a duty of care to disclose the legal status of Thomas McCabe who suffered post traumatic organic brain damage following a road traffic accident in 1965 whereupon, it is claimed, he was taken into wardship as a minor. The appellant claims that the defendants were negligent in not disclosing Thomas McCabe's legal status and that consequently they are in breach of the duty which they owed to the appellant and her five children. The appellant claims that her marriage to Thomas McCabe is a nullity. The appellant claims further that the defendants have caused the appellant loss and damage in that, it is claimed, she is unable to enforce any of her marital rights as there was an undisclosed legal impediment to the marriage; that the consequences to the appellant of her void marriage were foreseeable and that such a marriage to a minor who has been taken into wardship is prohibited by the legislation relating to wards of court and minors in Ireland.
The appellant claims that Thomas McCabe was involved in a road traffic accident in 1965 when he suffered organic brain damage and developed schizophrenia as a result. It was stated that his claim for personal injuries was settled upon an order of compromise in 1967; that the solicitors were appointed guardians and assumed control of his person and estate; that in 1967 the solicitors produced documents to Thomas McCabe purporting to be his personal injuries settlement which detailed minor physical injuries and a settlement of approximately £2,000; that Thomas McCabe was not aware of proceedings initiated by the defendants on his behalf; and that he was abandoned by his legal guardians and the funds paid into Court for his benefit were misappropriated. The appellant stated that on the 23rd September, 1972 she went through a service of marriage with Thomas McCabe and then resided with him in County Meath. During the years 1973 to 1980 the appellant gave birth to five children. In 1981 the solicitors acted for Thomas McCabe in the transfer of property comprising the family home. The appellant was not party to the transaction. The solicitors wrote that "they were aware of their own knowledge that the provisions in the Family Home Protection Act did not apply". The appellant wishes to proceed with the matter on behalf of her children. The appellant points out that schizophrenia is an inherited disease and that two of the children have inherited the disease from their father. She claims that the risk of inheriting this disease was foreseeable, and that the injury to the children was caused by the defendants' negligence. In 1992 the appellant separated from Thomas McCabe and commenced matrimonial proceedings. She maintained four of her children through University. She claims she was unable to avail of her legal entitlement to maintenance because of Thomas McCabe's legal status. The appellant obtained a decree nisi in matrimonial proceedings in 2004. She claims she is unable to proceed any further with the matter as there is a legal impediment on the marriage...
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