Scanlan v Gilligan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Haughton |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] IECA 270 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No: 2022/47 |
[2022] IECA 270
Whelan J.
Haughton J.
Binchy J.
Court of Appeal Record No: 2022/47
High Court Record No: 2019/7318
THE COURT OF APPEAL
Isaac Wunder order – Abuse of process – Bound to fail – Appellant appealing against an Isaac Wunder order – Whether the appeal was an abuse of process
Facts: The appellant, Ms Scanlan, commenced proceedings by plenary summons issued on 20 September, 2019 (the 2019 proceedings). The appellant appealed to the Court of Appeal against the judgment of the High Court (Butler J) dated 21 December, 2021 and her orders dated 26 January, 2022 whereby the proceedings were dismissed by consent as against the first defendant, Gilligan J, and were struck out in respect of all other defendants pursuant to the inherent jurisdiction of the court, and all other motions brought by the appellant (she had issued motions to transfer the proceedings to the jury list, and to join a Mr Mullen and a Mr Geary as notice parties) were dismissed, and costs were awarded to the second to tenth defendants against her. Ms Scanlan also appealed against an ‘Isaac Wunder’ order made by Butler J which prohibited Ms Scanlan from issuing any further proceedings, without prior leave of the High Court, against the fourth to seventh defendants, the firm of Grant Thornton and current or former partners or employees, the firm of McCann Fitzgerald and current or former partners or employees who acted in any proceedings involving Ms Scanlan on behalf of Grant Thornton, its partners or employees, and any current or former member of the Bar of Ireland who had acted or were acting on behalf of Grant Thornton, its partners or employees in proceedings involving Ms Scanlan. Only the consent order dismissing the proceedings against the first defendant was not appealed.
Held by Haughton J that the appellant had singularly failed to satisfy the onus of proof that was on her to show that the High Court judge erred in law or in fact. Haughton J was satisfied that the trial judge correctly identified the law and applied it to the facts, and was entitled, if not obligated, to dismiss the proceedings against the second, third, fourth and fifth respondents, Mr Collins, Mr Jeffers, Mr O’Brien and Ms O’Beirne (the lawyers), under the inherent jurisdiction. Haughton J agreed with the decision of the trial judge that so far as the sixth and seventh respondents, Grant Thornton Corporate Finance Ltd and Mr Connaughton (sued as a partner in Grant Thornton), were concerned the 2019 proceedings should be dismissed under the inherent jurisdiction as being bound to fail and an abuse of the process. Haughton J held that there was no challenge to the constitutionality of any provision of the Data Protection Acts 1988 and 2003 such as to warrant joining the eighth and ninth respondents, Ireland and the Attorney General (the State parties). Haughton J held that the trial judge was entitled to find that the claims against the tenth respondent, the Data Protection Commissioner, in the 2019 proceedings were bound to fail, and that they were manifestly an abuse of the process. Haughton J held that nothing in the grounds of appeal or the appellant’s submissions persuaded him otherwise than that the ‘Isaac Wunder’ order was fully justified. Haughton J held that he would dismiss the appeal, which was entirely without merit and was in itself an abuse of the process.
Haughton J held that as all the respondents had been entirely successful they should be awarded their costs of the appeal against the appellant, such costs to be adjudicated by a legal costs adjudicator in default of agreement.
Appeal dismissed.
JUDGMENT of Mr. Justice Robert Haughton delivered on the 25th November, 2022
This is an appeal by the appellant, Ms. Scanlan (who has at all times represented herself in these proceedings), against the judgment of Butler J. dated 21 December, 2021 and her orders dated 26 January, 2022 whereby the proceedings were dismissed by consent as against the first defendant, now retired judge Paul Gilligan, and were struck out in respect of all other defendants pursuant to the inherent jurisdiction of the court, and all other motions brought by the appellant (she had issued motions to transfer the proceedings to the jury list, and to join a Mr. Frank Mullen and a Mr. Declan Geary as notice parties) were dismissed, and costs were awarded to the second to tenth defendants against her.
Ms. Scanlan also appeals against an ‘Isaac Wunder’ order made by Butler J. which prohibits Ms. Scanlan from issuing any further proceedings, without prior leave of the High Court, against the fourth to seventh defendants, the firm of Grant Thornton and current or former partners or employees, the firm of McCann Fitzgerald and current or former partners or employees who acted in any proceedings involving Ms. Scanlan on behalf of Grant Thornton, its partners or employees, and any current or former member of the Bar of Ireland who have acted or are acting on behalf of Grant Thornton its partners or employees in proceedings involving Ms. Scanlan.
Only the consent order dismissing the proceedings against the first named defendant is not appealed. I will refer for convenience to the sixth and seventh named respondents together as “Grant Thornton” which term extends where the context so admits to the firm of Grant Thornton, which, although not itself a party, is covered by the ‘Isaac Wunder’ order made by Butler J., and features as a party in other relevant proceedings. Mr. Connaughton is sued as “a senior partner and risk manager in Grant Thornton [A Firm]”.
These proceedings (“the 2019 proceedings”) were commenced by Ms. Scanlan by plenary summons issued on 20 September, 2019. Following appearances and repeated requests a statement of claim was delivered belatedly on 13 June, 2020. Following that various motions were issued, and those heard in the High Court and most relevant to this appeal are the following strike out applications:–
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• Ms. Scanlan's motion to remove the first named defendant from the proceedings – on foot of which an order was made on consent.
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• A motion on behalf of the 2nd and 3rd named defendants, then barristers acting for Grant Thornton, to dismiss the proceedings pursuant to O. 19 r. 28 of the R.S.C. as disclosing no reasonable cause of action or being frivolous or vexatious, or alternatively pursuant to the inherent jurisdiction of the court as being bound to fail and/or an abuse of the process, and also seeking an ‘Isaac Wunder’ order.
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• A similar motion on behalf of the fourth and fifth named defendants who are solicitors in McCann Fitzgerald, and their clients the sixth and seventh defendants.
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• A similar motion on behalf of the Ireland and the Attorney General (“the State parties”).
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• A similar motion on behalf of the Data Protection Commissioner (“the Commissioner”).
The motions to dismiss proceeded before the High Court judge over three days, and were based on the pleadings, affidavit evidence, written legal submissions and oral arguments, and a transcript is available to this court. The court has also considered the Notice of Appeal, the Respondents' Notices, and written and oral submissions from the appellant and from each of the four sets of respondents opposing the appeal.
As the party appealing, the onus is on Ms. Scanlan to persuade this court that the trial judge erred materially in law or in fact, or in the application of the law to the facts. Her conspicuous failure to address the judgment of the High Court in any meaningful way is a recurring theme in the appeal and this judgment.
In Greenwich Project Holdings Limited v. Cronin [2022] IECA 154, this Court recently affirmed that the standard of review for the appellate court is as follows:
“[H]aving due regard to the jurisprudence and including Ryanair Limited v. Billigfluege.de GmbH [2015] IESC 11 (Unreported, Supreme Court, Charleton, 19 February 2015) and McDonagh v. Sunday Newspapers Limited [2017] IESC 46, [2018] 2 I.R. 1, a somewhat deferential approach ought to be taken by this Court to the exercise engaged in by the trial judge albeit however it is to be recognised that this Court is not in any less position than the trial judge to evaluate the affidavits and to form its own view after having afforded due weight to the views of the trial judge.”
It must be said that the judgment appealed from, which runs to 45 pages and 117 paragraphs, is detailed and comprehensive, and conducts a most careful appraisal and analysis of the claims made by Ms. Scanlan. It sets out why the trial judge comes to the conclusion that all her claims in the 2019 proceedings have already been decided with finality, or fall to be decided at trial, in the claims and counterclaims made in extant proceedings of Grant Thornton and Grant Thornton Corporate Finance Limited v. Geraldine Scanlan Record No. 2015/9954 P (“the 2015 proceedings”) which are due to be tried in the High Court in January 2023, or are otherwise bound to fail.
The trial judge in para. 8 emphasises the care required of a judge asked to dismiss proceedings being prosecuted by a litigant in person:
“8. This is not to say that cases brought by litigants-in-person are invariably bad cases. Frequently, at the core of the litigation there may be a point of real substance although it is often obscured by excessive pleading and by an insistence on pursuing all points, however unmeritorious, to the detriment of the real issue. The court's task is to ensure that if there is a point of merit in the case, it is not overlooked or disregarded because of the verbiage by which...
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