Rippington v Duffy
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 30 March 2021 |
| Neutral Citation | [2021] IECA 97 |
| Docket Number | Court of Appeal Record No. 2019/455 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
AND
AND
[2021] IECA 97
Costello J.
Collins J.
MacGrath J.
Court of Appeal Record No. 2019/455
High Court Record No. 2018/ 4803 P
COURT OF APPEAL
Abuse of process – Frivolous and vexatious proceedings – Cause of action – Respondents seeking to have the proceedings as against them dismissed on the basis that same were frivolous and vexatious and disclosed no cause of action – Whether the maintenance of the proceedings constituted an abuse of process
Facts: The plaintiff/appellant, Ms Rippington, on 25th May 2018, issued a plenary summons against the defendants/respondents, Ireland, the Attorney General, Principal Probate Registry, the Law Society of Ireland, Murray Flynn Maguire Solicitors, Ms Duffy, Ms Stephenson practicing under the style and title of Stephenson Solicitors, Ms McGurk, Mr Maguire, Mr Hussey and Ms Considine, claiming damages for professional negligence, breach of statutory and fiduciary duty, breach of constitutional rights and fair procedures and breach of contract. She also claimed damages for fraud, misrepresentation, deception, detinue, conversion and what was pleaded as malicious vilification. By notice of motion dated the 10th July, 2018, the fifth and sixth defendants made application to strike out the proceedings by reason of the failure to deliver a statement of claim, as being frivolous and vexatious and as disclosing no cause of action. They also sought orders restraining the plaintiff from instituting proceedings against them without the prior leave of the President of the High Court. By notice dated 18th October 2018, the proceedings were discontinued against the first to fourth and the tenth defendants. The seventh defendant issued his motion to dismiss the proceedings as disclosing no cause of action and as being frivolous and vexatious on the on 25th October, 2018. The ninth and eleventh defendants issued similar motions on the 30th October 2018 and 31st October, 2018, respectively. The plaintiff appealed to the Court of Appeal against orders of the High Court (Simons J) striking out her claim against the fifth, sixth, seventh, ninth and eleventh defendants as being an abuse of process, being frivolous and vexatious and as failing to disclose a cause of action. In doing so he awarded costs on a measured basis against the plaintiff.
Held by MacGrath J that the many, varied and unrestrained allegations made against the defendants in the proceedings had at their heart (i) the continuing maintenance by the plaintiff that the order of the High Court (O’Neill J) of the 23rd July, 2012 granting liberty to Ms Stephenson, solicitor, to extract a grant, is invalid and/or (ii) a continuing challenge to the validity of the plaintiff’s late sister’s will. MacGrath J held that these proceedings were a continuation of the plaintiff’s attempts to collaterally challenge valid and final orders upholding the validity of the will or concerning the administration of the estate. MacGrath J held that there was no basis for an allegation that the order of the 23rd July, 2012 was procured by fraud; it was an order that was obtained on the consent of the parties. MacGrath J recorded that the parties to that order, Mr Cox and Ms Butler, were not parties to these proceedings and, in any event, on the 19th December, 2017, the Court of Appeal ruled there was no justification for an extension of time to appeal that order and that there were no arguable grounds of appeal.
MacGrath J held that the plaintiff’s appeal must be dismissed. MacGrath J dismissed the plaintiff’s appeal against the orders of the trial judge restraining her from instituting proceedings against the fifth, sixth and eleventh defendants without the prior leave of the President of the High Court. MacGrath J removed the restraining orders made in favour of the seventh and ninth defendants. MacGrath J’s provisional view was that the defendants had been entirely successful in the appeal and accordingly the costs of the appeal should follow the event.
Appeal dismissed.
This is the plaintiff/appellant, Ms. Rippington's, appeal against orders of Simons J. striking out her claim against the fifth, sixth, seventh, ninth and eleventh defendants as being an abuse of process, being frivolous and vexatious and as failing to disclose a cause of action. In doing so he awarded costs on a measured basis against Ms Rippington. Certain issues arise concerning the nature and permissible extent of the appeal which are considered below.
On 25 th May 2018, Ms Rippington issued a plenary summons against the defendants claiming damages for professional negligence, breach of statutory and fiduciary duty, breach of constitutional rights and fair procedures and breach of contract. She also claims damages for fraud, misrepresentation, deception, detinue, conversion and what is pleaded as malicious vilification. All such claims have been refuted by the defendants in affidavits sworn in support of their respective applications.
By notice of motion dated the 10 th July, 2018, the fifth and sixth defendants made application to strike out the proceedings by reason of the failure to deliver a statement of claim, as being frivolous and vexatious and as disclosing no cause of action. They also sought orders restraining the plaintiff from instituting proceedings against them without the prior leave of the President of the High Court; known as an Isaac Wunder order. A statement of claim was delivered on 3 rd September 2018. By notice dated 18 th October 2018, the proceedings were discontinued against the first to fourth and the tenth named defendants. The seventh named defendant issued his motion to dismiss the proceedings as disclosing no cause of action and as being frivolous and vexatious on the on 25 th October, 2018. The ninth and eleventh defendants issued similar motions on the 30 th October 2018 and 31 st October, 2018, respectively.
The genesis of these proceedings arises from a dispute in relation to the estate of the late Celine Murphy, sister of Ms Rippington, who died on the 15 th March, 2011. One week earlier, on the 8 th March, 2011, she made her last will and testament leaving her estate to Ms Mary Butler and naming Bishop Michael Cox as executor. Ms. Rippington's mother, Catherine, died testate later that month on the 25 th March 2011. Under the terms of her will the late Catherine Murphy's estate fell to be divided equally between her children, including Ms. Rippington.
Ms. Rippington was dissatisfied with the circumstances surrounding the making of her late sister's will. Proceedings to challenge that will were instituted in 2011 by herself, her husband and her sister - Rippington v. Cox, (Record Number 2011/8319P). For ease of reference, these are described herein as the “probate proceedings”. Ultimately, the probate proceedings were dismissed by the High Court, which dismissal was upheld on appeal to this Court. In 2012, while the probate proceedings were in being, application was brought pursuant to the provisions of the Succession Act, 1965, s.27, by the executor named in the late Celine Murphy's will for liberty to extract a grant to the estate, pendente lite. When that application came before the High Court on 23 rd July 2012, O'Neill J granted liberty to Ms Anne Stephenson, solicitor, to extract a grant. For ease of reference this is referred to as the “order of O'Neill J”. The manner in which this application was dealt with is also a cause of continuing complaint by Ms Rippington.
Ms Rippington's unhappiness with the circumstances of the execution of her late sister's will and the manner in which the order of O'Neill J was made may be said to be central to the multiplicity of litigation and court applications which followed. The continuing defendants in these proceedings were involved in, or represented parties to, those applications and proceedings in one capacity or another. For a proper understanding of the nature of the claims now made it is necessary, at least to some extent, to re-visit the history of such litigation which was the subject of detailed consideration in the judgment of Simons J delivered on the 24 th May 2019.
On 16 th September, 2011, Ms Rippingon, her husband, Shaun Rippington (the executor of the estate of Catherine Murphy), and Ms Rippington's sister, Edel Banahan, instituted proceedings against Bishop Michael Cox and Ms. Mary Butler, seeking an order condemning the late Celine Murphy's will. It was claimed that the deceased was not of sound disposing mind, that the will was improvident and unconscionable and that the execution of the will had been procured by the undue influence of the defendants.
On 30 th July, 2015 Noonan J. dismissed the claim and admitted the will to probate in solemn form of law ( Rippington v. Cox [2015] IEHC 516). Ms. Rippington appealed the dismissal by notice dated 24 th August, 2015. The appeal was dismissed on 19 th December, 2017 ( Rippington v. Cox [2017] IECA 331, Ryan P., Peart and Whelan JJ).
The named executor of Celine Murphy's estate made application pursuant to the Succession Act, 1967, s. 27, to be appointed as administrator pendente lite. Ms Rippington and her co-plaintiffs in the probate proceedings were placed on notice of the application. On, 23 rd July 2012, following discussions between counsel, O'Neill J. made an order giving Ms. Anne Stephenson, solicitor, liberty to apply for a grant of administration pendente lite...
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Colm Murphy v The Law Society of Ireland and Simon Murphy
...invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation. See also Rippington v. Duffy & Ors [2021] IECA 97 at para 61 and Houston v. Doyle [2020] IECA 289, where it was stressed that any such order must be made only to the extent 16 . To date an......