Robert Ewing v Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,
• Judgment Date: 11 October 2013
• Neutral Citation: [2013] IESC 44
• Court: Supreme Court
• Date: 11 October 2013

Ewing v Ireland & AG

Between/

Robert Ewing

Appellant

and

Ireland and the Attorney General

Respondents

[2013] IESC 44

Hardiman J.

O'Donnell J.

MacMenamin J.

[Appeal No: 274/2008]

THE SUPREME COURT

RSC O.19 r27

RSC O.19 r28

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 1 ART 1

CONSTITUTION ART 34.4.6

AER RIANTA CPT v RYANAIR LTD 2004 1 IR 506 2004/1/158 2004 IESC 23

BARRY v BUCKLEY 1981 IR 306 1981/9/1485

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 CHAP 16

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425 1991/10/2412

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691

DYKUN v ODISHAW & ORS 267 AR 318 2000 ABQB 548

LANG MICHENER & FABIAN, IN RE 37 DLR (4TH) 685

Introduction

1 1. This is an appeal from the order of the High Court (Dunne J.) wherein she directed that the proceedings herein be struck out pursuant to Order 19 Rule 27 and Rule 28 of the Rules of the Superior Courts, and pursuant to the court's inherent jurisdiction.

2 2. More than 30 years ago, the appellant's father, William Arthur Pax Ewing, signed an agreement with his neighbour, Anthony Kelly, for the sale of lands comprised in Folio 1347 in the Register of Freeholders County Galway. That agreement was dated the 6 ^th December, 1982. Almost one month later, on the 2 ^nd January, 1983, William Ewing conveyed the lands. Anthony Kelly was registered as owner thereof on the 2 ^nd May, 1983. Since then, both the appellant, Robert Ewing, and his late father before him have been involved in protracted litigation regarding that transaction and connected matters. This has culminated in this appeal by Robert Ewing.

3 3. Mr. Ewing is clearly deeply concerned about the events which took place in 1982 and 1983. He has been in correspondence with various government agencies in Ireland, and in England, where he was born. He also sought to involve the European Court of Human Rights in Strasbourg in the case.

4 4. The appellant presented his appeal to this Court in a most concise manner. He was informed at the outset of the appeal that the Court had had the opportunity of reading the papers prior to the hearing. The fact that this Court and other courts have the opportunity of reading documents beforehand ensures that no injustice is done to a litigant-in-person, as points are not always best expressed in oral argument. Equally, for the same reason, the court allocates a specific period of time for oral submissions to both appellant and respondent.

Background to these proceedings

5 5. In 1987 and 1988, five years after the transaction in question, Anthony Kelly initiated two sets of proceedings in the Galway Circuit Court. He alleged the Ewings were trespassing on the disputed lands and had obstructed a right of way to which he, as purchaser, claimed he was entitled.

6 6. For the purposes of those proceedings, William Ewing was advised by a firm of solicitors in the area, CP Crowley & Co. This firm was later replaced by a second firm of solicitors, Egan, O'Reilly & Co.

7 7. Both sets of proceedings came on for hearing before the late Judge John Cassidy on the Western Circuit in May 1990. They were part heard at the time of the judge's unfortunate death. Then there was a further change of solicitor, as a result of which Messrs Burke & Co. replaced Messrs Egan & Co. as the Ewings' solicitors. Ultimately, the matter came on for hearing before His Honour Judge Harvey Kenny on the 12 ^th June, 1996. By then, 14 years had elapsed since the original agreement of the 6 ^th December, 1982.

8 8. At the Circuit Court hearing, William Ewing was represented by senior and junior counsel. Robert Ewing was named as co-defendant with his father, but there was no appearance on his behalf. Robert Ewing blames one of his former solicitors for this nonappearance. The cases culminated in judgment in Mr. Kelly's favour. The Circuit Court made a declaration he was entitled to the right of way which he claimed.

9 9. William and Robert Ewing both appealed this decision to the High Court. The appeal first came before Ms. Justice Mella Can-oil in Galway on 19 ^th November, 1996. Ms. Lorna Burke of Burke & Co., the solicitors then acting for the Ewings, sought an adjournment. There was no appearance in court on behalf of Robert Ewing. Robert Ewing now says that he was not aware of the appeal as a result of his solicitor's alleged negligence. His appeal against the Circuit Court order was struck out. William Ewing's case was adjourned to the next sitting of the High Court in Galway on terms. The appeal ultimately came before the High Court (Kelly J.) sitting in Galway on the 22 ^nd July, 1997. By this time, William Ewing was representing himself. Kelly J. upheld the Circuit Court decision in relation to Anthony Kelly's trespass claim. William Ewing's counterclaims in the two cases were dismissed with no order as to costs.

10 10. As these were Circuit Court appeals to the High Court, there was no further right of appeal. Thus, the issues between William Ewing and Anthony Kelly, and all persons claiming through them, were at an end. Kelly J'.s judgment and order was sufficient to determine for once and all the issues between Mr. Kelly and the members of the Ewing family. As was pointed out in a prior judgment of this Court dated 31 ^st October, 2001, Robert Ewing was privy to William Ewing's claim. Put simply, this meant that any claim which Robert Ewing might have had was subsumed in William Ewing's unsuccessful appeal. Kelly J. 's judgment was therefore as binding on Robert Ewing as it was on his father.

11 11. On the 6 ^th May, 1999, Robert Ewing separately issued High Court proceedings. He sought to re-open the issues which had been determined. William Ewing unfortunately died on the 20 ^th January, 1999. Robert Ewing's view is that the pressures of the litigation badly affected his father's health. The appellant's concern is that his father sold land to Anthony Kelly under Mr. Kelly's undue influence, and the influence of a firm of solicitors involved in the transaction. The appellant thought that the sale price of the lands was well below the true valuation of the property.

12 12. In these new High Court proceedings, he combined these claims with allegations of negligence and fraud against the Law Society and a number of solicitors firms, who, at various times, had acted for (or against) the family. The State was also joined. All, save the State defendants, brought motions to strike out the proceedings, submitting the matters in issue had previously been finally determined. Judgment in that application was delivered on the 16 ^th May, 2000, by the High Court (O'Sullivan J.) Invoking the inherent jurisdiction of the Court, that judge acceded to the application made by Anthony Kelly, VP Shields and Sons, CP Crowley and Co., the Law Society of Ireland, Egan O'Reilly Solicitors, and Burke and Co. The High Court ordered that the proceedings be struck out on the grounds that Robert Ewing could not conceivably succeed as the issues had been previously determined. Mr. Ewing appealed against that order. This Court delivered judgment on the 31 ^st October, 2001, dismissing the appeal. By order of the High Court, made on the 31 ^st March, 2003, the proceedings against the remaining State defendants were struck out, there being no appearance by the appellant. By April 2003, therefore, there were no proceedings in being. The matters in issue had been determined by court orders.

The Present Proceedings

13 13. In 2006, Mr. Ewing brought the proceedings the subject matter of this application. This was the third set of proceedings concerning the same background. Here, he sued only Ireland and the Attorney General as defendants. He delivered a Statement of Claim on the 27 ^th July, 2006. This was followed by the respondent's motions to strike out the proceedings pursuant to Order 19 Rule 27 and Order 19 Rule 28 of the Rules of the Superior Courts 1986, and pursuant to the inherent jurisdiction of the court. The application was heard in the High Court (Dunne J.) on the 11 ^th June, 2008.

14 14. As part of a careful ex tempore judgment, the High Court judge summarised parts of the Endorsement of Claim which were actually set out in the Statement of Claim. The appellant is of the view that some previous judgments only cited selected passages from his pleadings in order to create embarrassment. Here, such quotation is necessary simply to set out his case as pleaded. The references to the "defendant" in the quotation below are both to Ireland and the Attorney General. The Endorsement of Claim read as follows:

2 "1. Between the 15 ^th day of June 1987 and 31 ^st day of October 2001, the defendant generally failed - given the nature of the proceedings and the circumstances of the Plaintiff which gave rise to them, to provide a reasonable environment by which the Plaintiff could reasonably respond to the intrinsic demands to the litigation in question, causing excessive loss to the Plaintiff in relation to both the proceedings concerned and further issues pertaining to his enjoyment of home, family and life in Eire, and also to his character.

2 The said negligence and breach of duty by the defendant, its servants or agents, caused the abnormal circumstances by which a High Court Order was made against the Plaintiff on the 31 ^st day of March 2003, dismissing the remaining portion of his proceedings and having Costs awarded against him in relation to it, when under normal circumstances such Action on the part of the defendants in such a matter would have been frivolous and would not have resulted in such an Order being made against the Plaintiff.

3 The defendant failed throughout - and...