Tracey v Minister for Justice, Equality & Law Reform

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date31 July 2018
Neutral Citation[2018] IESC 45
CourtSupreme Court
Docket Number[Appeal No. 2009/29]
Date31 July 2018
BETWEEN:
KEVIN TRACEY
PLAINTIFF/APPELLANT
V.
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND THE ATTORNEY GENERAL, COMMISSIONER OF AN GARDA SIOCHANA, DIRECTOR OF PUBLIC PROSECUTIONS, THE DUBLIN METROPOLITAN DISTRICT COURT, THE COURTS SERVICE,

AND

DAVID REYNOLDS
DEFENDANTS

[2018] IESC 45

MacMenamin J.

O'Donnell Donal J.

MacMenamin J.

Finlay Geoghegan J.

[Appeal No. 2009/29]

THE SUPREME COURT

Cause of action – Cross-examination – Misfeasance in public office – Plaintiff seeking damages for misfeasance in public office, breach of constitutional and human rights, malicious prosecution, abuse of legal process, and perversion of the course of justice – Whether the pleadings disclosed any cause of action against the sixth and seventh defendants

Facts: The plaintiff, Mr Tracey, in plenary summons issued on the 15th November, 2007, and in a subsequent statement of claim, made a number of allegations of wrongdoing against all eight defendants. Those claims took the form of alleged misfeasance in public office, breach of constitutional and human rights, malicious prosecution, abuse of legal process, and perversion of the course of justice. Mr Tracey claimed damages for those alleged wrongs, and for loss, inconvenience and expense caused by alleged breach of contract, negligence, and breach of duty. On the 26th January 2009, the High Court, relying on Order 19, Rule 28, RSC, 1986, struck out the plaintiff’s claim against the sixth and seventh defendants. The High Court held that the pleadings did not disclose any cause of action against the two defendants, who were, respectively, identified in the plenary summons and statement of claim as the “Dublin Metropolitan District Court”, and the “Courts Service”. The following issues fell to be determined in an appeal to the Supreme Court: 1) whether Mr Tracey was wrongly denied a right to cross-examine a deponent, Ms O’Neill, who swore a grounding affidavit in the High Court on behalf of the Courts Service; 2) whether any claim was sustainable in law against the Dublin Metropolitan District Court; 3) whether the statement of claim made out a cause of action against the Courts Service.

Held by the Court that the judge was correct in disallowing the application to cross-examine. The Court held that what is defined as the Dublin Metropolitan District is simply that a court district having defined geographical boundaries; as such, it is not an entity having legal personality capable of being sued and it cannot be joined as a party to legal proceedings. The Court held that this claim was unsustainable and, therefore, frivolous and vexatious. The Court held that the Courts Service could not avail of Order 19, Rule 28 to strike out.

The Court held that the appeal would be dismissed with regard to the sixth defendant, but allowed with regard to the seventh defendant.

Appeal allowed in part.

Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2018
1

On the 26th January 2009, the High Court, (Hedigan J.), relying on Order 19, Rule 28, RSC, 1986, struck out the plaintiff's claim against the sixth and seventh named defendants in these proceedings. The High Court held that the pleadings did not disclose any cause of action against the two defendants, who were, respectively, identified in the plenary summons and statement of claim as the ‘Dublin Metropolitan District Court’, and the ‘Courts Service’. For the purposes of this judgment, both will be referred to as ‘the defendants’, save where the context indicates otherwise. In all, a total of eight defendants were sued. For ease of reference, Mr. Kevin Tracey, a litigant in person, who was the respondent in the High Court motion to strike out, and who now appeals the order, will, for clarity, also be referred to as ‘the plaintiff’.

Background
2

The plenary summons in these proceedings was issued on the 15th November, 2007. There, and in the subsequent statement of claim, the plaintiff made a number of allegations of wrongdoing against all eight defendants. These claims took the form of alleged misfeasance in public office, breach of constitutional and human rights, malicious prosecution, abuse of legal process, and perversion of the course of justice. Mr. Tracey claimed damages for these alleged wrongs, and for loss, inconvenience and expense caused by alleged breach of contract, negligence, and breach of duty.

3

The solicitor for the two defendants, who were applicants in the High Court, entered an appearance on the 7th December, 2007. A statement of claim, delivered on the 22nd December, 2007, identified the sixth named defendant as ‘The Dublin Metropolitan District Court’, having an address at Richmond District Court, Brunswick Street, Dublin 7, which was sued in its ‘representative capacity’. The Courts Service, created by statute in the year 1998, was also said to be sued in its representative capacity. The identity of the other six defendants is self-explanatory, with the exception of the eighth named defendant, David Reynolds, who is a member of An Garda Siochana, who brought a District Court prosecution in question against the plaintiff, which gives rise to the claim.

General Observations
4

To provide a framework for what follows, it may be helpful to make some general remarks on pleadings, and particularly a statement of claim. It is by now well established that the purpose of a statement of claim is to state succinctly the facts upon which a plaintiff relies, and the reliefs which are claimed. As a matter of basic fairness, if a plaintiff makes claims against a number of different defendants, each defendant is entitled to know precisely the case which is made against it. (See, in this connection, Order 20, Rules 3 and 8, RSC 1986). A pleading must be so clear and precise as to leave no reasonable doubt as to the matter which the court must determine, and for each party to know the case which must be met. A claim of a tort, or breach of right, other than particularisation of one already pleaded, will require an amendment to the statement of claim itself. In a reply to particulars, a plaintiff may identify with greater precision the factual basis of the claim already made against each defendant. In a case of complexity, the duty of precision, and particularisation, is much the greater in order that a court will be aware of what matters truly form the basis of the claim. If the pleading in the statement of claim is unclear in that it does not precisely set out the case which is to be made, a defendant may be entitled to bring an application to strike out under Order 19, Rule 28, on the basis that the claim is, as the Rules of the Supreme Courts describe it, ‘frivolous and vexatious’. When so found, these terms mean that the claim does not disclose a cause of action against the relevant defendant, and that, as a result, it would be unfair to compel such party to incur costs in continuing to defend the case. As is made clear in the judgment of this Court in Aer Rianta c.p.t. v. Ryanair Limited [2004] 1 I.R. 506, a court, hearing an application under Order 19, Rule 28, is entitled to have regard to matters of law in determining whether a claim is fairly made out.

Legal Principles
5

The legal principles upon which a court will proceed in dealing with an application under Order 19, Rule 28, are well established. The terms ‘frivolous and vexatious’ are to be understood as meaning that the claim is unsustainable in law, has no chance of success, such that its continuation would be an unfair imposition on a defendant.

6

In considering an application to strike-out proceedings under Order 19, Rule 28, it is necessary for the courts to balance the constitutional right of a plaintiff's access to the courts against rights and interests of defendants who should not be exposed to defending proceedings which are bound to fail. As the authorities make clear, the courts are ‘slow’, ‘careful’ and ‘sparing’ in exercising this function. In Aer Rianta, cited earlier, this Court, (Denham, Hardiman, McCracken JJ.), emphasised that an application of this type relates only to the textual content of the statement of claim. Denham J., in Aer Rianta, explained that an affidavit filed for the motion in that case purely described the factual situation as to the pleadings, but did not seek to advance any matter outside them.

7

In McElhinney v. Williams [1995] 3 I.R. 382, the High Court, Costello J., in considering an application to set aside proceedings under this Rule, explained that, in such an application, the court was not called upon to decide controversial questions of fact, but rather to consider the claim made on the pleadings. The judgment of this Court in the subsequent appeal in McElhinney does not criticise this observation, and giving judgment this Court confined itself to a consideration of the pleadings and matters of law in that case. The correctness of this approach is confirmed by that adopted by this Court in Aer Rianta, cited above.

8

An application to strike out is to be decided on the assumption that the statements in the statement of claim are true, and will be proved at trial. If good cause of action can be discerned, then an application under Order 19 Rule 28 cannot succeed, regardless of the parties' prospects of establishing that cause of action at the trial. An application will not succeed, either, if a deficiency in pleading can be rectified by an amendment in the pleading. (c.f. Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425; Lawlor v. Ross, Supreme Court, 22nd November, 2001). In Aer Rianta, Denham J. explained that the Rule relates to the full Statement of Claim, and not any part thereof. (See para. 19 to 24 of Denham J.'s judgment). But, if a court is convinced that a claim will fail, the pleading will be struck out.

9

To these principles I would add that, in determining such an issue, a judge should indicate clearly...

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7 cases
  • McAndrew v Launceston Property Finance DAC
    • Ireland
    • Court of Appeal (Ireland)
    • 27 Febrero 2023
    ...acted fairly and proportionately, and that his approach satisfied the requirements set out in Tracey v Minister for Justice & Law Reform [2018] IESC 45 and Tracey v Irish Times [2019] IESC 62. Faherty J dismissed the appeal on all grounds. She held that the defendants should be awarded thei......
  • Mangan v Dockery, Mangan v Dockery
    • Ireland
    • Supreme Court
    • 4 Noviembre 2020
    ...lack both clarity and precision, a requirement identified by MacMenamin J. in Tracey v. Minister for Justice, Equality & Law Reform [2018] IESC 45 (Unreported Supreme Court, 31 st July, 2018) at para. 4. A correct reading of the judgment of Binchy J. is that in the absence of his own expert......
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  • Tracey v Irish Times Ltd
    • Ireland
    • Supreme Court
    • 30 Julio 2019
    ...draw its own conclusions from such conduct, and, if it decides to adjourn, to set clear conditions on the adjournment. Tracey v. McDowell [2018] IESC 45 27 Tracey v. McDowell & Others [2018] IESC 45 is a slightly different case. There this Court had to consider whether the High Court judge,......
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