William Bullen and Another v Brendan O'Sullivan and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 12 February 2015 |
| Neutral Citation | [2015] IEHC 72 |
| Court | High Court |
| Date | 12 February 2015 |
[2015] IEHC 72
THE HIGH COURT
AND
AND
Land and Property – Boundary Dispute – Appeal – Abuse of Process – Res Judicata - O.19 r. 28 of the Rules of the Superior Courts
Facts: The defendants in this case sought orders pursuant to the jurisdiction of the court and/or under O.19 r. 28 of the Rules of the Superior Courts to dismiss or strike out the plaintiff”s claim. The defendant argued that the plaintiff”s claim should be struck out on grounds of abuse of process, res judicata, and because their claims were frivolous and vexatious. The first and second defendants sought an Issac Wunder order to restrain the plaintiffs from issuing further proceedings against the defendants. The third named defendant and fourth to eighth defendants sought the same or similar reliefs.
Background
Mr and Mrs Bullen bought lands from the Linters family. The Linters had previously purchased those lands from the first and second named defendants. For the purpose of the purchase from the Linters, the third defendant, an engineer, was to inspect the site and produce a report on the house. The fourth to eighth defendants were the solicitors involved in the sale of the house. They acted for both the Linters who were the vendors and the Bullens who were the purchasers.
It was agreed at a later stage that additional land would be sold to the Bullens from the O”Sullivans. The main issue of the dispute in this case is the boundary of the Bullens” property. The defendants agreed that the map of the property was incorrect but they also argue that a Deed of Rectification had been drawn up and agreed upon by the O”Sullivans and the Bullens. It recorded a transfer of land from the O”Sullivans to the Bullens in consideration of a transfer of land from the Bullens to the O”Sullivans. The Bullens did not accept that the transfer rectified the boundary/contractual dispute. The O”Sullivans went on to sell the land that was transferred to them from the Bullens to the Fearons.
Circuit Court proceedings followed where the Fearons and the O”Sullivans were the plaintiffs and the Bullens were the defendants. The plaintiffs sought specific performance of the Deed of Rectification made between the O”Sullivans and the Bullens. A settlement was reached and a written agreement was handed down. Mr and Mr Bullen had been represented by a separate set of solicitors in these proceedings.
The Bullens” did not accept the settlement terms that were handed down in the Circuit Court. They obtained an order to amend their plenary summons for the purpose of having the property settlement set aside. They were also granted orders to join the O”Sullivans, the second set of solicitors representing them, John J.M. Power, and the Fearons as co-defendants. The defendants made an application for a dismissal of the Bullens” case and Mrs Bullen sought to submit that there had been issues of fraud. The High Court ordered that the Bullens” claim be dismissed and the proceedings be struck out.
Held by Donnelly J: The court was satisfied there was an error in the original map delineating the property and the errors were not picked up in a number of transfers. The Bullens were separately represented at the time of the Circuit Court settlement, their rejection of that settlement and taking of subsequent proceedings against their new solicitor as well as all the other parties, the fact they had already pursued and lost a High Court case on the same grounds, clearly illustrated an abuse of process. The only appropriate order for the court to make was to strike out the case against O”Donovan Murphy. Furthermore, the court held that the proceedings were res judicata. Donnelly J sait it was not appropriate for the court to determine the rights and wrongs of the boundary map in question. The previous settlement was valid and represented the current position in relation to the boundaries. The court hoped Mr and Mrs Bullen would finally accept its terms. The court determined that the boundaries should be delineated on the agreed map and be filed with the Register of Titles in accordance with the terms of the settlement. The court determined that the legal dispute was now over.
1. These are motions brought by the various defendants seeking orders pursuant to the inherent jurisdiction of the court and/or under O. 19 r. 28 of the Rules of the Superior Courts dismissing or striking out the plaintiffs' claim.
2. The first and second defendants (hereinafter "Mr. and Mrs. O'Sullivan" or "the O'Sullivans") have sought orders pursuant to the inherent jurisdiction of the court and/or under RSC O.19 r.28 striking out or dismissing the plaintiffs' claims on various grounds of abuse of process, oppression, that they are frivolous and vexatious, that they disclose no reasonable cause of action and/or that they are bound to fail. These defendants also maintain that the Plaintiffs' claims are res judicata. They claim that further and in the alternative the plaintiffs' claims could have been brought forward in previous proceedings. The first and second defendants also seek to restrain the plaintiffs from instituting further proceedings against the first and second defendants without the leave of the High Court û an Isaac Wunder order.
3. The third named defendant (hereinafter "Mr. McCarthy") seeks identical relief against the plaintiffs.
4. The fourth to eighth defendants (hereinafter "O'Donovan Murphy") seek similar orders. They also claim that the proceedings are statute barred, that the plaintiffs are guilty of laches and/or inordinate and/or inexcusable delay in the issue and that the plaintiffs have not brought the present proceedings for a bona fide purpose. These defendants also claim that the plaintiffs are not coming to court with clean hands having reneged on an earlier Circuit Court Consent Order and settlement.
5. The plaintiffs (hereinafter "Mr. and Mrs. Bullen" or "the Bullens") had sought judgment either in default of appearance or defence against the various defendants. It appears that that motion was adjourned and Mr. McCarthy and O'Donovan Murphy issued their motions seeking this relief. I determined that it was appropriate to hear those applications prior to a determination of the motions for judgment.
6. At that hearing of the motions brought by Mr. McCarthy and O'Donovan Murphy, counsel for Mr. and Mrs. O'Sullivan informed the Court that he was seeking to issue a motion and have it made returnable for hearing in tandem with the other applications. Counsel stated that it was identical to that of the other motions and that the same issues of fact and law would arise. Mr. and Mrs. Bullen who were lay litigants, assisted by McKenzie friends, sought time to consider that motion and I granted same. Thereafter I proceeded to hear the motions of Mr. McCarthy and O'Donovan Murphy and set aside a separate hearing date for the motion to the brought by the O'Sullivans. I indicated that I would give a composite judgment in relation to all of the motions.
7. One issue that arose at the second hearing was that Mr. and Mrs. Bullen raised a number of procedural issues about the O'Sullivans' motion. Mr. and Mrs. Bullen submitted that the grounding affidavit was not filed. I am satisfied that it was filed.
8. Mr. and Mrs. Bullen questioned how the solicitor for Mr. and Mrs. O'Sullivan could aver that he only heard of the other motions at a late stage. They raised an issue as to why a request for an adjournment of that motion had been made on the basis that a further affidavit was due to be filed when no such affidavit was filed. They objected to the late filing of this motion on the basis that it caused them hardship due to their ill-health and the burden they have in travelling from England.
9. Mr. and Mrs. Bullen also questioned the bona fides of the solicitor for Mr. and Mrs. O'Sullivan when he swore that he did not know of the motions until he was telephoned by their McKenzie friend in October 2014. They say that the other defendants had raised the issue of an adjournment for the purpose of bringing the motions to dismiss in the course of an application relating to the motions for judgment heard in May 2014. On that basis, they say he must have known of the proposed action.
10. I am satisfied that it is proper to hear and determine the motion on the basis of the contents of the affidavits. I have been told that the present counsel did not appear at the hearing of that motion for judgment and that a town agent may have appeared. An appearance was entered. In any event, I do not accept that the solicitor for Mr. and Mrs. O'Sullivan was misleading the court in terms of the averment he made as to his knowledge of the situation. Furthermore, given the history of the proceedings, there is every reason to believe that if he had known of the motions, he would certainly have advised in relation to the pursuit of same.
11. Most importantly perhaps, I do not consider the "delay" in issuing the motion a matter that compels the refusal of the reliefs. I am also of the view that nothing in any sense new or unexpected arises in this motion. It is substantially the same as the other motions. Even allowing for the indisposition of Mr. and Mrs. Bullen, I am satisfied that it is in the interests of justice that I proceed to determine the...
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SP v UG
...or restrained and also the person or persons against whom such litigation must not be pursued. The approach taken in Mullen v. O'Sullivan [2015] IEHC 72 and Gunning v. Brian Sherry Solicitors [2015] IESC illustrates the careful approach which should be taken relation to the making an Isaac ......