O'Reilly McCabe v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 29 June 2006
• Neutral Citation: [2006] IEHC 208
• Docket Number: [No. 4524 P/2004]
• Court: High Court
• Date: 29 June 2006

[2006] IEHC 208

THE HIGH COURT

[No. 4524 P/2004]

MCCABE v MIN FOR JUSTICE & SMITH & COMPANY (AGENTS OF MCCABE, WARD OF COURT)

BETWEEN/

CARMEL ROSE O'REILLY McCABE

PLAINTIFF

AND

THE MINISTER FOR JUSTICE AND PATRICK CUSACK SMITH AND COMPANY (AGENTS OF THOMAS McCABE, WARD OF COURT AND MINOR)

DEFENDANTS

FAMILY HOME PROTECTION ACT 1976 S3

LAND ACT 1965 S25

MCCABE v DOLAN COSGRAVE UNREP LYNCH 14.10.1991 1991/13/3147

CIVIL JURISDICTION & ENFORCEMENT OF JUDGMENTS ACT 1991

O'SIODHACAHAIN v O'MAHONEY UNREP SUPREME 7.12.2001 2001/20/54327

FAY v TEGRAL PIPES LTD 2005 2 IR 261

BARRY v BUCKLEY 1981 IR 306

CONSTITUTION ART 40.3

O'BRIEN v MANUFACTURING ENGINEERING LTD 1973 IR 344

RSC O.19 r28

RIORDAN v IRELAND (NO 5) 2001 4 IR 463

LANG MICHENER & FABIAN, RE 1987 37 DLR 4TH 685

STATUTE OF LIMITATIONS ACT 1957 S44

STATUTE OF LIMITATIONS ACT 1957 S71

PRACTICE AND PROCEDURE

Dismissal of action

No reasonable cause of action - Disputed facts - Mere assertions - Public record -Whether matters of public record could be disputed by mere assertions - Whether cause of action shown - Whether discovery adequate - Whether defence should be struck out for failure to comply with discovery order- Proceedings struck out (2004/4524P -Murphy J - 29/6/2006) [2006] IEHC 208 O'Reilly McCabe v Minister for Justice, Equality and Law Reform

the plaintiff brought plenary proceedings claiming negligence and for the wrongful birth of five children against the defendants. All of the issues sought to be litigated had been the subject of numerous prior actions brought by the plaintiff, all of which had been dismissed. The defendants brought a motion seeking to have the proceedings struck out on the basis that they disclosed no reasonable cause of action, were vexatious and an abuse of process. They also sought an order restraining the plaintiff from bringing further applications without the prior leave of the court.

Held by Mr Justice Murphy, in dismissing the proceedings and making an order restraining the plaintiff from making any further application without seeking the prior leave of the court that an application to strike out proceedings could only succeed where the facts were not reasonably in dispute. Insofar as there was a conflict of fact, it had to be resolved in favour of the party against whom the application to strike out had been brought. A claim would only be struck out where, on admitted facts or undisputed evidence, it was clearly unsustainable or bound to fail. The criteria characterising vexatious litigation such as; the bringing up on one or more actions to determine an issue which had already been determined by a court of competent jurisdiction; where it was obvious that an action could not succeed; where the action was brought for an improper purpose; where issues tended to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who had acted for or against the litigant in earlier proceedings and where the person instituting the proceedings had failed to pay the costs of unsuccessful proceedings, were all present in the plaintiff’s action.

Reporter: P.C.

Mr. Justice Murphy

1. Motions

1 2 1.1 Three notices of motion were returnable before the court on 21st and 22nd June last as follows:

2 A motion filed 15th February, 2005 and returnable for 7th March, 2005 by the first named defendant for an order dismissing the action on the grounds that the plaintiff had no reasonable cause of action and/or that her claim must fail against the first named defendant; for an order staying or dismissing the action on the grounds that the proceedings are vexatious and/or an abuse of process of the court and an order restraining the plaintiff from making any further application without first seeking the leave of the court.

3 The application for the third order was not proceeded with at this stage.

4 2 1.2 The second motion filed on 31st March, 2005 by the second named defendant, who had acted for the plaintiff's husband in a road traffic accident proceedings (1966: No. 650P), was for a similar order and for an order, further or in the alternative, directing the trial of a preliminary issue as to whether or not the plaintiff's claim, if any, as against the second named plaintiff was statute barred. An order restraining the plaintiff from instituting any further proceedings against the second named defendant and/or Joan Smith, the principal of the second defendant without the leave of the court was not proceeded with at this stage.

5 3 1.3 The third motion, that of the plaintiff, filed on 7th September, 2005 and originally returnable for 10th October, 2005, was for an order striking out the defence of both defendants for failure to make discovery of documents pursuant to an order of the court dated 26th April, 2005 and for an order for direction as to the trial of the issues of fact having regard to the fraudulent concealment alleged and/or found against the defendants and for an order that the papers be directed to the office of the Director of Public Prosecutions.

6 The applicant, and respondent to the first and second motions, appeared in person.

7 It, accordingly, is necessary to consider the proceedings in their entirety in order to assess the alleged failure to make discovery and to assess whether the plaintiff has a reasonable cause of action.

2. Plenary Proceedings

8 By plenary summons dated 14th April, 2004, the plaintiff claimed as follows:

"The plaintiff's claim is for Negligence and for the wrongful birth of five children."

9 By notice of motion for judgment in default of defence returnable for 11th October, 2004, the plaintiff applied for judgment in relation to the breach of her human rights in the action.

3. Statement of Claim

10 2 3.1 The statement of claim, undated, claims that the defendants owed the plaintiff 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 he was taken into wardship as a minor, which they did not disclose and are consequently in breach of the duty which they owed to the plaintiff and her five children. The plaintiff claimed that the defendants had caused the defendant loss and damage and that she was unable to enforce any of her marital rights and that there was an undisclosed legal impediment to the marriage which was foreseeable.

11 She claimed that Thomas McCabe was abandoned by his legal guardians and the funds paid into court for his benefit were misappropriated.

12 It was further claimed that in 1981 the second named defendants acted for Thomas McCabe in the transfer of property comprising part of the family home.

13 A separate grounding affidavit for judgment in default of defence substantially repeats the matters claimed in the statement of claim.

14 2 3.2 The particulars of loss and damage are stated as follows:

15 1) The plaintiff has initiated matrimonial proceedings. However, because of her husband's legal status, she is unable to obtain financial relief in the form of a property adjustment order, maintenance, pensions order or any other financial relief from his estate. The plaintiff claims for these losses.

16 2) The plaintiff claims damage for the loss of her rights over the family home at Lisduff, Kells, County Meath in the Republic of Ireland. This property is valued at approximately €1.4 million and the plaintiff claims this amount. (No further particulars were given).

17 3) The plaintiff claims damage for the loss of her right to maintenance for her children for their education from the period 1992 to 2004 as referred to in a schedule annexed to the statement of claim.

18 4) The plaintiff claims damage for the loss of her rights to the ongoing maintenance which is derived from her marital status, including pension rights, and health costs for the rest of her life.

19 5) The plaintiff claims personal injury damage for her sons, Thomas Patrick Paul McCabe and James Ultan Gerard McCabe, who have been diagnosed as having schizophrenia. (No further particulars were given).

20 6) The plaintiff claims personal injury damages for her daughter Anne Mary McCabe who has been diagnosed as having dyslexia.

4. Plaintiff's Affidavit

21 The grounding affidavit, sworn 22nd June, 2004, sets out the background to and the loss following from this unusual claim. The plaintiff deposed,inter alia, to matters occurring in 1965 to 1967 before her meeting the plaintiff in 1971 and their subsequent marriage on 23rd September, 1972 as follows:

22 1) Thomas Joseph Patrick McCabe was involved in a road traffic accident in 1965 in which he sustained post-traumatic organ brain damage and developed schizophrenia as a result of the head trauma he sustained. (Reference was made to the diagnosis which was not exhibited in the affidavit but is otherwise included in the several files of papers relating to previous applications before this Court. (Reference was also made to a note of a Dr. Joyce S.H.O. of St. Davnet's Hospital Monaghan, dated 12th September, 1983 regarding the diagnosis of her husband).

23 2) His claim for personal injuries was settled in the High Court in Dublin upon an order of compromise dated 1967. Reference was made to the consent. (These proceedings were 1966 No. 650P).

24 3) Patrick Cusack Smith and Company were appointed guardians and assumed control of his person and estate. Reference was made to an order of Mrs. Justice Denham, dated 20th November, 1992, compelling service of matrimonial proceedings on the guardians of Thomas McCabe, who are Patrick Cusack Smith and Company.

25 4) In 1967 Patrick Cusack Smith and Company produced documents to Thomas McCabe purporting to be his personal injuries settlement which detailed...