Smith v Ireland

JurisdictionIreland
JudgeMr. Justice Twomey
Judgment Date25 October 2017
Neutral Citation[2017] IEHC 642
Docket Number[2017 No. 8094 P]
CourtHigh Court
Date25 October 2017
BETWEEN:
JUNE SMITH
PLAINTIFF
-AND-
IRELAND, THE ATTORNEY GENERAL, GARDA COMMISSIONER, AN GARDA SIOCHANA, BALLENLINE LIMITED, JOHN EDWARD FLETCHER, JOHN CHARLES FLETCHER, HINCH PLANT HIRE
DEFENDANTS

[2017] IEHC 642

[2017 No. 8094 P]

THE HIGH COURT

Property & Conveyancing – Isaac Wunder Order – Plenary summons – Trespass – Abuse of process – Disqualification order

Facts: The plaintiff sought an order for preventing the named solicitor from acting for fifth defendant in the present case on the basis that the same solicitor acted for the plaintiff. The plaintiff had initiated a plethora of proceedings against the defendants for claiming ownership of the farm. The Court had even issued Isaac Wunder order against the plaintiff.

Mr. Justice Twomey refused to grant the desired relief to the plaintiff. The Court held that the plaintiff had lied to the Court and abused the process of law. The Court made an expanded Isaac Wunder Order against the plaintiff. The Court also made a disqualification order against the McKenzie Friend who assisted the plaintiff in litigating the false and vexatious litigation. The Court observed that the McKenzie Friend acted against the interests of justice. The Court disqualified the McKenzie Friend to act as a McKenzie Friend alone or in concert with any other person in any proceedings before any court or forum without the consent of the President of the High Court. The Court also restrained the plaintiff to file any proceeding before any Court without the leave of the President of the High Court.

JUDGMENT of Mr. Justice Twomey delivered on the 25th day of October, 2017.
Summary
1

This is a case involving Mrs. June Smith, a lay litigant who, with the assistance of Mr. William Murphy, who "practises" as a McKenzie Friend, have been involved in abuse of process upon abuse of process in relation to Mrs. Smith's obsessive, hopeless and vexatious litigation which she has pursued for approximately five years in relation to her former farm at Carn in Portarlington, Co. Laois, which she mortgaged to ACC Loan Management Limited ('ACC')

2

Mrs. Smith, with the assistance of her McKenzie Friend, has deliberately contravened her understanding of the terms of an Isaac Wunder Order which was issued against her in July of 2017. This court order prevented her from ever again issuing proceedings in relation to her former farm against, inter alia, ACC. Despite her understanding of the terms of the Isaac Wunder Order, she instituted the current proceedings in September 2017 against inter alia, Ballenline Limited, the new owner of the farm. As part of those proceedings and during the vacation sittings of the High Court and on an ex parte basis, she deliberately misled Barrett J. by claiming, inter alia, that the farm was hers, in order to obtain an injunction against Ballenline Limited from trespassing on what is its own farm. Having obtained the injunction, she then sought to personally execute the court order preventing Ballenline from trespassing on its own farm, as if she was an arm of the State, even though she had no authority to do so and has no interest whatsoever in her former farm. During these court applications, which patently amount to an abuse of process, she has been assisted by her McKenzie Friend, Mr. William Murphy. Accordingly this judgment deals with the granting of a more expansive Isaac Wunder Order against Mr. Smith and a Disqualification Order against, Mr. William Murphy from ever acting as a McKenzie Friend again.

Background facts
3

The case was heard on the 3rd October, 4th October, 2017 and the 12th October, 2017 and involves Ms. June Smith's attempt to assert ownership rights, and dispute the ownership rights of others, to the farm which was mortgaged by her and her husband to ACC and which was subsequently sold by a receiver on behalf of ACC as a result of the failure of Mr. and Mrs. Smith to repay the loan of some €2 million secured on the farm.

4

The plaintiff's long and unsuccessful litigation since 2012 has been outlined previously in this Court's judgment of June Smith v. ACC Loan Management Limited [2017] IEHC 505 (which was joined with Jane Smith v. ACC Loan Management Limited, a case involving her daughter in almost identical and equally unsuccessful claims about the same farm).

5

That judgment delivered by this Court on the 21st July, 2017, dismissed the proceedings taken by Mrs. Smith and her daughter against ACC and Mr. Shane McCarthy (the "Receiver") regarding the right of ACC and its Receiver to sell the farm. However, those unsuccessful proceedings were far from the first set of unsuccessful proceedings which had been taken by Mrs. Smith regarding the ownership of the farm.

Court resources which have been wasted in Mrs. Smith vexatious litigation
6

Judgment was initially obtained in the High Court on the 29th February, 2012, by ACC against Mrs. Smith and the extent of the court resources which have been used up in dealing with Mrs. Smith's dispute is clear when one considers that

since then, High Court and Court of Appeal judgments and orders regarding the dispute have been made on:

• 17th October, 2014,

• 1st December, 2015,

• 18th April, 2016,

• 15th June, 2016,

• 27th July, 2016,

• 7th March 2017,

• 25th April, 2017,

• 17th May, 2017, and

• 21st July, 2017 (this Court's recent judgment on the matter)

This also excludes a High Court hearing scheduled for this month which deals with Mrs. Smith's allegations that Gilligan J. had a conflict of interest in dealing with one of the previous hearings in this dispute, and the future Court of Appeal hearing regarding her claim that the High Court was incorrect to remove a lis pendens registered by her on the title to the farm.

Beggars belief that Mrs. Smith issued her previous proceedings
7

At para. 39 of the most recent court judgment regarding her dispute, namely the judgment of the 21st July, 2017, this Court noted that:

'This Court is of the view that it beggars belief that Mrs. Smith and Ms. Smith, after receiving the damning judgment of the High Court and the damning judgment of the Court of Appeal that their previous challenges to the sale of the farm was an abuse of process, would issue these two sets of proceedings and continue to pursue these proceedings, which they are doing to this day. It is for this reason that it has no hesitation in dismissing both sets of proceedings as an abuse of process upon abuse of process.'

8

It now transpires that despite these observations and despite the fact that an order, known as an Isaac Wunder Order, was made against Mrs. Smith in that judgment of 21st July, 2017, which prevented her from issuing any further proceedings regarding the farm against ACC or the Receiver, Mrs. Smith has now issued these further proceedings before this Court.

9

These proceedings were issued within weeks of the Isaac Wunder Order with the aim of challenging, once again, the sale of her former farm, but in this instance she issued proceedings, not against ACC or the Receiver, but against, inter alia, the fifth-named defendant, Ballenline Limited, a company which purchased the farm from the Receiver. After issuing these proceedings against Ballenline Limited, Mrs. Smith obtained an ex parte injunction from Barrett J. during a vacation sitting of the High Court preventing Ballenline Limited from trespassing on the farm it had just purchased.

Isaac Wunder Order granted against Mrs. Smith
10

Part of the background to the Isaac Wunder Order is that the High Court (Gilligan J.) gave a perpetual injunction on the 1st December, 2015, against Mrs. Smith from ever trespassing on the farm again in light of her previous attempts to regain possession of her former farm. The wording of the Isaac Wunder Order issued by this Court against her under the terms of the judgment of 21st July, 2017, is as follows:

'(A) that the plaintiff [Mrs Smith] be restrained, from issuing or causing to be issued any further proceedings (in whatever Court or forum) against ACC Loan Management Designated Activity Company (or ACC Loan Management Limited), Shane McCarthy, KPMG, or any of their servants or agents concerning, relating to or touching upon:

1. The lands comprised in Folios LS5608, LS5548, LS30277F and LS28061F of the Register of County Laois [the farm];

2. A facility letter dated 8 November 2007 in the amount of €1,296,000 made between June Smith and James Smith of the one part and ACC Bank Plc (as ACC Loan Management DAC was then known) of the other part;

3. A facility letter dated 8 November 2007 in the amount of €800,000 made between June Smith and James Smith of the one part and ACC Bank Plc (as ACC Loan Management DAC was then known) of the other part.

without the prior leave of the High Court, the proposed Defendants to any such proceedings having been put on notice of any application for such leave.

(B) that if any such proceedings are issued or caused to be issued by the Plaintiff without leave of the High Court, the First Named Defendants is not required to appear or to take any steps in relation thereto and that any proceedings so taken shall be treated as void and of no effect.'

11

It is relevant to note that the wording of the perfected order does not refer to the President of the High Court, nor does it prohibit per se, proceedings being issued in relation to the farm against a party other than ACC or the Receiver. However, the clear intent of the Isaac Wunder order in light of the history of litigation by Mrs. Smith regarding her former farm, is to prevent her from litigating ever again in relation to the farm. Of even more significance is the fact that Mrs. Smith interpreted the Isaac Wunder Order as preventing her from litigating against anyone in relation to the farm.

12

This is clear because this Court obtained a copy of the transcript of the hearing before Barrett...

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2 cases
  • Sheehan v Talos Capital Ltd
    • Ireland
    • High Court
    • 20 June 2018
    ...that one of the flaws with Isaac Wunder orders (and Disqualification Orders of McKenzie Friends – see the case of Smith v Ireland [2017] IEHC 642 in which such an order was made against a McKenzie Friend) that there is currently no public register of litigants or McKenzie Friends against w......
  • Allied Irish Banks Plc v McQuaid
    • Ireland
    • High Court
    • 10 September 2018
    ...In itself, a question might well arise whether such a person would be appropriate to act as a McKenzie friend.' 138 In Smith v. Ireland [2017] IEHC 642 Twomey J. considered whether Mr. William Murphy, who assisted the plaintiff as a McKenzie Friend, should be disqualified from so acting. H......
1 firm's commentaries
  • New Approach To Lay Litigants, Mediation Act And More
    • Ireland
    • Mondaq Ireland
    • 18 January 2018
    ...2 Practice Direction HC72, see Lay Litigants and McKenzie Friends - A Positive Reaction to a Recent Trend. 3 Smith v Ireland & Ors [2017] IEHC 642. 4 Permanent TSB v Langan [2017] IESC 5 As to which, see our review of 2016. 6 [2017] IEHC 672. 7 See The Mediation Act 2017: Well-Intention......

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