Roy Brophy v The Minister for Defence, Ireland and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 19 December 2016 |
| Neutral Citation | [2016] IEHC 791 |
| Docket Number | [2015/6308 P.] |
| Court | High Court |
| Date | 19 December 2016 |
[2016] IEHC 791
THE HIGH COURT
McDermott
[2015/6308 P.]
AND
This is an application pursuant to O. 19, r. 28 of the Rules of the Superior Courts whereby the fourth named defendant in these proceedings seeks an order striking out the plaintiff's claim on the basis that it discloses no reasonable cause of action and should be dismissed. The application is based on the further legal principle that the court has an inherent jurisdiction to strike out a proceeding which is bound to fail.
The background to the case arises from an alleged accident which occurred on 13 th December, 2013. A personal injuries summons issued on 4 th August, 2015, which was served on the fourth defendant on 4 th September, and subsequently, an appearance was entered.
The accident on 13 th December, 2013, allegedly occurred on a passenger vessel called the Kary Craft when there was a collision with pier buffers while sailing between Cobh and Crosshaven. The Kary Craft is a passenger vessel which works as a ferry in Cobh Harbour.
The claim, as set out, is based on the alleged negligence and breach of duty of the first, second and third defendants the Minister for Defence, Ireland, and the Attorney General.
The claim against the fourth defendant is based on alleged liability arising from its responsibility in relation to the care, maintenance, management and ownership of the vessel at the time of the alleged accident.
A number of particulars of negligence and breach of duty are set out at para. 6(a) – (k) of the original endorsement of claim. They are followed by a sentence which states that the plaintiff reserves the right to furnish further particulars as appropriate indicating that these may not be the full particulars to be relied on by the plaintiff in respect of the claim.
The endorsement of claim also contains the particulars of personal injury and the plaintiff also reserved the right to furnish further particulars as appropriate.
A defence has been entered by the first, second and third defendants in which they indicate that they intend to seek an indemnity against the fourth defendant, Marine Transport Services. A notice of indemnity has been served and indeed, a notice of indemnity has been served by the fourth defendant on the first three plaintiffs in respect of the claim.
The legal principles that govern an application of this kind are well settled following a number of recent Supreme Court decisions. These have been relied upon by both sides in the course of this hearing and essentially, are summed up by Clarke J. in Keohane v. Hynes [2014] IESC 66. At paras. 6.1 to 6.2. of that case Clarke J. adopts and applies the principles which have been set out in his own judgment in Salthill Properties Limited v. Royal Bank of Scotland [2009] IEHC 207.
The relevant principles are stated as follows:-
‘It is true that, in an application to dismiss proceedings as disclosing no cause of action under the provisions of Order 19, the court must accept the facts as asserted in the plaintiff's claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim. However, I would not go so far as to agree with counsel for Salthill and Mr. Cunningham, to the effect that the court cannot engage in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the court. A simple example will suffice. A plaintiff may assert that it entered into a contract with the defendant which contained certain express terms. On examining the document the terms may not be found, or may not be found in the form pleaded. On an application to dismiss as being bound to fail, there is nothing to prevent the defendant producing the contractual documents governing the relations between the parties and attempting to persuade the court that the plaintiff has no chance of establishing that the document concerned could have the meaning contended for because of the absence of the relevant clauses. The whole point of the difference between applications under the inherent jurisdiction of the court, on the one hand, and applications to dismiss on the factual basis of a failure to disclose a cause of action on the other hand is that the court can, in the former, look to some extent at the factual basis of the plaintiff's claim.’
The court has to be cautious about the extent to which it will enter into a consideration of disputed facts in a case and in that regard, the court has to pay attention to the fact that the construction of documents may be open to dispute in the context in which they were entered into or the context in which a particular contract was executed or the terms were implemented.
If there is such a contest discernible from the pleadings or arising from the evidence given on this motion, it seems to me that it is appropriate for the court to consider that contest and whether it should be resolved by oral or other evidence and submission at the trial of the action. It may be that it involves an issue of fact or a mixed issue of fact and law which ought to be determined.
Thus, if a defendant cannot succeed in an application to strike out proceedings simply on the basis that they disclose no reasonable cause of action or an abuse of process and if the court on the hearing of such an application is required to determine such a contested issue for the purpose of deciding whether a plaintiff could possibly succeed in the action then the matter must go to a full hearing.
It is not the court's function to determine whether the plaintiff will succeed on that matter, it must simply ascertain whether the question properly arises and does the question properly arise following the proper institution of these proceedings. That particular question has to be addressed in the light of the pleadings and such evidence as may be adduced.
It should also be noted that these particular principles have been further addressed in the Supreme Court decision of Moylist Construction Limited v. Doheny [2016] IESC 9, in which Clarke J. reiterated the principles set out previously in Keohane and added at para. 3.6:-
‘3.6 However, in addition, it seems to me that the comments made in Keohane in reality stem from a more fundamental principle. The default position in respect of any proceedings is that they should go to trial. Depriving the parties of a full trial in whatever form is appropriate to the proceedings concerned is a departure from the norm, and one which should only be engaged in when it is clear that there is no real risk of injustice in adopting that course of action.
3.7 I would not wish to indicate that the criteria by reference to which the courts consider whether to adjourn proceedings commenced by summary summons to plenary hearing (and thus give the defendant leave to defend) are necessarily exactly the same as those which apply in an application to dismiss under the inherent jurisdiction. However, there are broad similarities which make it useful to refer to the “leave to defend” jurisprudence, at least by analogy.
3.11 … the Court has an entitlement in a summary summons application for judgment to resolve questions of law or the interpretation of documents, that entitlement should only be exercised where it is possible and appropriate so to do within the confines of a motion without running the risk of injustice. It seems to me that a similar consideration necessarily applies concerning the extent to which it is appropriate to get into complex issues of law or construction on an application to dismiss a case as being bound to fail. Like the summary judgment motion, such an application will be heard on affidavit and within the confines of a motion rather than at a full hearing. The test which the court is required to apply is very similar. In a summary judgment application, it is as to whether it is very clear that the defendant has no defence (this test is now well established, going back at least to Aer Rianta cpt v. Ryanair Ltd. [2001] 4 I.R. 607). That is very similar to the test applied in a Barry v. Buckley application which requires the court to be satisfied that the claim is bound to fail or, to use the language of the summary judgment jurisprudence, that it is very clear that the plaintiff has no case and thus that the plaintiff's claim is bound to fail.
3.12 It seems to me to follow from that analysis that there are cases which are just not suitable for an application to dismiss under the inherent jurisdiction. Clearly, cases involving factual disputes (save to the very limited extent to which it is appropriate...
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