Talbot v McCann Fitzgerald Solicitors and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 08 October 2010
• Neutral Citation: [2010] IEHC 383
• Court: High Court
• Date: 08 October 2010

Talbot v McCann Fitzgerald Solicitors & Ors

BETWEEN

THOMAS TALBOT

PLAINTIFF

AND

McCANN FITZGERALD SOLICITORS, AVIVA PLC AND UNITE THE UNION

DEFENDANTS

[2010] IEHC 383

[No. 8581 P/2009]

THE HIGH COURT

PRACTICE AND PROCEDURE

Abuse of process

Frivolous or vexatious claim - Res judicata - Isaac Wunder order - Oppressive claim - Inherent jurisdiction to strike out - Right of access to courts - Whether plaintiff sought to revisit and reopen litigation long since concluded - Whether proceedings disclosed reasonable or sustainable cause of action - Whether proceedings unsustainable or bound to fail - Whether any attempt to identify new cause of action - Whether plaintiff should be restrained from taking future claim - Whether mere suspicion that plaintiff may take further claim sufficient to justify Isaac Wunder order - Fay v Tegral Pipes Ltd [2005] IESC 34, [2005] 2 IR 261; Barry v Buckley [1981] IR 306; Riordan v Ireland (No 5) [2001] 4 IR 463 and Riordan v An Taoiseach (Unrep, SC, 19/10/2001) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 19, rr 28 and 29 - Proceedings struck out (2009/8581P - Hanna J - 8/10/10) [2010] IEHC 383

Talbot v McCann Fitzgerald

Facts The plaintiff had previously been engaged in litigation against some of the defendants. The plaintiff had litigated issues over thirty years relating to family law proceedings, his employer and his trade union. In particular issues had arisen relating to his pension entitlements. The present proceedings were initiated by the plaintiff and oral submissions were made. The three defendants brought motions seeking to have the plaintiff's claim dismissed or struck out pursuant to Order 19, rule 29 of the Rules of the Superior Courts, 1986. The defendants also sought what was colloquially known as an "Isaac Wunder Order" seeking to restrain the plaintiff from taking any further proceedings against the defendants without leave of the High Court.

Held by Hanna in dismissing the proceedings. It was apparent to the court during the course of the plaintiff's oral submissions that he was fighting past battles yet again. The proceedings disclosed no reasonable or sustainable cause of action and would be struck out. The proceedings against all defendants would be struck out. An Isaac Wunder order would be granted restraining the plaintiff from taking any further proceedings against the second and third-named defendants. As these were the plaintiff's first proceedings against the first-named defendant no Isaac Wunder order would be granted.

Reporter: R.F.

TALBOT v HIBERNIAN GROUP PLC & AMICUS THE UNION UNREP IRVINE 14.11.2007 2007/58/12467 2007 IEHC 385

TALBOT v HIBERNIAN GROUP PLC & AMICUS THE UNION UNREP SUPREME 26.3.2009 2009/54/13803 2009 IESC 27

TALBOT v MCCANN FITZGERALD SOLICITORS & ORS UNREP SUPREME 26.3.2009 2009/54/13657 2009 IESC 25

RSC O.19 r29

RSC O.19 r28

FAY v TEGRAL PIPES LTD & ORS 2005 2 IR 261 2005/25/5119 2005 IESC 34

BARRY v BUCKLEY 1981 IR 306 1981/9/1485

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

RIORDAN v AN TAOISEACH (AHERN) & ORS 2001 3 IR 365 2001/21/5707

1 JUDGMENT of Mr. Justice Hanna delivered the 8th day of October, 2010

2 The plaintiff in this case is a lay litigant. While he describes himself as a "self litigant", he has been described by others as a "serial litigant" (Kearns J., Supreme Court) and a man with grievances.

3 The background to the plaintiff's woes has already been extensively described in the following judgments:-

4 (i) Thomas Talbot v. Hibernian Group plc & Amicus the Union [2007] IEHC 385, (Unreported, High Court, Irvine J., 14 ^th November. 2007);

5 (ii) Thomas Talbot v. Hibernian Group plc & Amicus the Union [2009] IESC 27 (Unreported, Supreme Court, 26 ^th March, 2009) - Judgment of Kearns J. on appeal from the foregoing decision of Irvine J.

6 (iii) Thomas Talbot v. McCann Fitzgerald Solicitors, Mrs. Thérése Talbot, Judge Michael White, Judge Jacqueline Linnane, Courts Services, Chief State Solicitor [2009] IESC 25 (Unreported, Supreme Court, 26 ^th March, 2009) - Judgment of Denham J.

7 I do not propose to set out in detail yet again the factual background to this case although it is important that I map out how we come to be where we are now. It should be noted that in the Supreme Court, on appeal from the decision of Irvine J., it was noted by Kearns J. that, apart from one minor matter, the plaintiff did not raise any significant dispute with the factual background as described by Irivne J. Very briefly, the plaintiff has been engaged on several fronts in legal disputes over the past three decades. Firstly, he has to deal with the undoubted trauma of family law proceedings leading to judicial separation and ultimately divorce from his wife, with the attendant significant ramifications. He then came into dispute with his employer, Hibernian plc. (now Aviva plc), leading, inter alia, to a situation where he was unfairly overworked and considerably underpaid (as he would see it) given his seniority, in contrast with others engaged, by his employer. Thirdly, he has been engaged in litigation with his trade union, formerly Amicus the Union and now Unite the Union, complaining, inter alia, about the failure of the union to represent his interests and the conduct of the union and the solicitors at one stage engaged on his behalf. The issue of his pension entitlements spans all the proceedings.

8 In the above proceedings, the plaintiff now seeks to involve the first named defendants, Messrs. McCann Fitzgerald Solicitors, who previously acted for Mrs. Talbot in the matrimonial proceedings to which I have earlier referred. Although this is the first time the plaintiff has sued them in plenary proceedings, he did previously seek to involve them in judicial review proceedings. Along the way, he became involved in litigation involving his Golf Club. The details of this do not concern us here.

A Brief History of the Litigation to Date

9 The plaintiff's family law litigation took up the 1990s and spilt into the new millennium. He was legally represented at one stage, but his solicitor and counsel came off record at some undefined point (he sought to lay blame for this on the first named defendant in the current proceedings). Otherwise, he has represented himself. He has appeared before a number of judges both in the High Court and Circuit Court, a few of whom he regards reasonably highly. To others, however, he attributes base motives for the decisions they have made, such decisions being adverse to him. The final act in the family law litigation was an appeal from a pension adjustment order made in the Circuit Family Court and which was rejected by Abbott J. on the 26 ^th June, 2002.

10 The plaintiff then sought judicial review of that order and applied to Quirke J. on the 7 ^th September, 2003, at which point his application was already significantly out of time. Quirke J. refused the order. The plainitiff then made a futher application ex parte for judicial review citing McCann Fitzgerald Solicitors, the first named defendant herein, and his former wife as respondents. This application was made on the 12 ^th December, 2005, (nearly three years out of time) to Peart J., who reserved judgment and refused leave on the 6 ^th February, 2006. The judicial review application was given Record No. 2005 No. 1423 J.R. A copy of Mr. Justice Peart's judgment was not made available to me but an extract from it is contained in a judgment of the Supreme Court delivered by Denham J. (see below). The plaintiff seems to have been somewhat confused as to what was going on and, at one stage at least, was of the view that he had been granted leave. At one stage he even suggested that some person had interfered with Peart J.'s judgment. However, it is abundantly clear that Peart J. refused leave.

11 This refusal was appealed to the Supreme Court which, in an ex tempore judgment delivered by Fennelly J. on the 29 ^th June, 2007, dismissed the appeal. On the 11 ^th January, 2008, the plaintiff brought an ex parte motion seeking on order vacating the order of the Supreme Court of the 29 ^th June, 2007. At this stage, according to the written judgment, a number of other parties appear to have been added to the proceedings. This relief was refused by the Supreme Court. The appeal and the application to vacate bear Record Number 2006 No. 114 and the judgment of the Court was handed down by Denham J. on the 2 ^th March, 2009 (see [2009] IESC 25 (Unreported, Supreme Court, 26 ^th March, 2009)). The application was refused.

12 While all of the foregoing was taking place, the plaintiff was active on another front. He commenced proceedings in April, 2006 against Hibernian Group plc. (now Aviva plc.) and Amicus the Union (now Unite the Union). These proceedings bear Record Number 2006 No. 1726 P.

13 I will return later to the nature of proceedings authored by the plaintiff. These proceedings were met by a motion from Amicus the Union seeking to have the proceedings struck out on the grounds that they disclosed no reasonable cause of action and that they were frivolous and vexatious. On the 11 ^th January, 2007, Dunne J. struck out the proceedings on the former but not on the latter ground. A note of the judgment was made by Ms. Aileen Fleming, a solicitor in the above third named defendant's solicitors firm, Messrs. Donal Spring & Co., to which the plaintiff appeared to take some exception durig the hearing of this matter. Having read it, it appears to me to be a complete and professionally prepared note of an ex tempore judgment in which it is clear that the learned judge had considerable compassion for the plaintiff's plight. Nonetheless, since he has some objection to it, I will not cite it. There can be no doubt, however, as to the terms...