William J. P. Egan v Michael Fenlon, Barry Sullivan, Gerard Burns, Ray Devine, Shane O'Connor, John Flannery, Seamus Heraty, Padraic Breen, Margaret Neile, Tom O'Donnell, Seamus O'Brien, Pat Donlon, Paul Doran, Dan Curley, Paddy Flynn, Joe O'Loughlin, Des Furlong, John Diver, Carmel Magee, Peter Crinnion, Tom O'Shea, Leonard Rasmussen and Joe Synnott

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] IEHC 75
• Docket Number: [2016 No. 8887P.]
• Court: High Court
• Date: 04 February 2021

Between

William J. P. Egan

Plaintiff

and

Michael Fenlon, Barry Sullivan, Gerard Burns, Ray Devine, Shane O'Connor, John Flannery, Seamus Heraty, Padraic Breen, Margaret Neile, Tom O'Donnell, Seamus O'Brien, Pat Donlon, Paul Doran, Dan Curley, Paddy Flynn, Joe O'Loughlin, Des Furlong, John Diver, Carmel Magee, Peter Crinnion, Tom O'Shea, Leonard Rasmussen and Joe Synnott

Defendants

[2021] IEHC 75

[2016 No. 8887P.]

THE HIGH COURT

Defamation – Cause of action – Frivolous and vexatious proceedings – Defendants seeking an order striking out the proceedings – Whether the proceedings were frivolous and vexatious and bound to fail

Facts: The plaintiff, Mr Egan, on 9th August, 2017, requested voluntary discovery of three categories of documents. The three categories of discovery were directed to any investigation into the plaintiff’s practice; any complaint, claim or proceedings against him; and any complaints made by any third party in relation to the plaintiff in his capacity as a solicitor. Among the questions asked in a 23 paragraph notice for particulars of the claim are whether the plaintiff, at any time in the course of his 35 year career, has been found to have been in breach of his professional obligations to the Law Society; whether he was ever sanctioned by the Law Society; whether he was ever the subject of a complaint or claim by a client; and whether he has ever been the subject of proceedings in his capacity as a solicitor. Neither the notice for particulars nor the request for voluntary discovery was answered and on 15th February, 2019 separate motions were issued seeking orders requiring compliance. Those motions were grounded on affidavits sworn by the defendants’ solicitor and were answered by affidavits sworn by an assistant solicitor in the plaintiff’s office on 13th May, 2019. The answer to the discovery motion was not based on the pleadings or the request for discovery but on a letter, which had been written three days previously, on 10th May, 2019, the object of which appeared to have been to try to take out of the case any issue as to previous complaints or professional difficulties. Whatever the object of the letter of 10th May, 2019 may have been, the effect of it, said the defendants, was to so hollow out the claim that there was nothing left in the action and by the motion before the High Court, which was issued on 19th November, 2019, the defendants applied for an order pursuant to O. 19, r. 28 striking out the proceedings on the grounds that they disclosed no reasonable cause of action, or an order pursuant to the inherent jurisdiction of the court striking out the proceedings on the grounds that they were frivolous and vexatious and bound to fail.

Held by Allen J that the application was directed to the action rather than the statement of claim and the statement of claim clearly disclosed a cause of action. Allen J was not persuaded that the plaintiff’s letter of 10th May, 2019 had the effect that the action was thereafter bound to fail.

Allen J held that the plaintiff was not entitled to prosecute the action otherwise than as an action for damages for defamation. Allen J would hear counsel as to the precise form of order. Provisionally, it seemed to Allen J that if the plaintiff was determined to prosecute the action in the way he had indicated, he could only do so by appealing against an order dismissing the action.

Motion refused.

JUDGMENT of Mr. Justice Allen delivered on the 4th day of February, 2021

1 The plaintiff in this case is a solicitor who for many years acted as the solicitor for an unincorporated association called the National Association of Regional Game Councils (“NARGC”). That is the umbrella body for a number of regional game councils, whose members are local gun clubs, or the members of local gun clubs. In 2015 the plaintiff decided that that he would cease to act for the NARGC and gave notice with effect from 17th October, 2015, which was the date of the association's annual general meeting, and was the date on which the first defendant, Mr. Michael Fenlon, was elected chairman.

2 The plaintiff had a number of ongoing cases for the NARGC and he presented bills for his fees and outlays. In addition, the plaintiff issued Civil Bills on behalf of a number of members of the NARGC to recover from the association the fees and outlays payable to him by those members arising out of a dispute with the association. A dispute as to the plaintiff's entitlement, or at least the extent of his entitlement, to fees went to mediation and on 31st March, 2016 was settled upon terms reduced to writing which included a provision in respect of the plaintiff which read “6. Cessation of any professional involvement with the NARGC.”

3 In 2016, as Murphy J. observed at the time, the NARGC was an unhappy organisation. Having dealt with the claims of its former solicitor and the members for whom he had acted, it became embroiled in litigation with a long standing senior employee. A number of the regional councils were concerned with the manner in which that litigation was being conducted and in July, 2016 requisitioned an extraordinary general meeting. The NARGC instituted High Court proceedings to restrain the holding of such a meeting. An interim order was made by O'Connor J. but the plaintiffs' motion for an interlocutory injunction was refused. Mr. Egan acted for the defendants in that action. Mr. Fenlon took exception to that, alleging that it was a breach of the settlement. Mr. Egan also acted against the NARGC on behalf of a former employee, which Mr. Fenlon thought was a breach of the settlement agreement. A complaint was made to the Complaints and Client Relations Committee of the Law Society which was rejected.

4 The 2016 annual general meeting of the NARGC was scheduled to take place on 15th October, 2016 in Kilkenny. In advance of that meeting the annual general report was circulated. The report included a proposed resolution 6, proposed by Wicklow Game Conservation Council:-

“That because of the agreement reached at mediation with William Egan of William Egan & Associates and his failure to honour that agreement, the following shall apply:

• • No Associate Member, Regional Game Council, or any Sub Committee of the NARGC shall engage the legal services of William Egan & Associates Solicitors in any dealings with the NARGC.

• • If they do they shall immediately be referred by the National Executive to the Disciplinary Committee and if the complaint is upheld those who are the subject of the complaint shall cease to be members of the NARGC and their membership of the Compensation Fund shall not be renewed.

• • All NARGC indemnity shall be null and void from the date William Egan & Associates Solicitors were engaged.”

5 The plaintiff assumed that Mr. Fenlon was responsible for the proposed resolution and on 6th October, 2016 commenced this action, then naming only Mr. Fenlon as the defendant, claiming a variety of injunctive reliefs, damages for defamation, aggravated and punitive damages for defamation, a correction order pursuant to s. 30 of the Defamation Act, 2009, and costs.

6 On the same day the plaintiff applied ex parte to O'Connor J. for an interim injunction restraining the defendant his servants or agents or any person acting in concert with him or having knowledge of the making of the order (1) from uttering or publishing any words to the effect that Mr. Egan had breached the settlement agreement, (2) from circulating, publishing or proposing resolution 6, or (3) from publishing or circulating the annual report so long as it contained the text of resolution 6. O'Connor J. directed that the defendant be put on notice of the application and on 12th October, 2016 he refused the motion for the reasons given in an ex tempore judgment, including that Mr. Fenlon had denied that he was responsible for the publication of the material complained of, and that the judge was not persuaded that damages would not be an adequate remedy. As the judgment shows, while Mr. Fenlon denied that he was responsible for the publication of the annual report, he indicated to the court that he would take certain steps to prevent its further circulation and to replace the page complained of in those copies which had already been circulated. The costs of that motion were reserved. Egan v. Fenlon [2016] IEHC 566.

7 Mr. Fenlon's denial that he was the publisher immediately prompted a motion to join the five other officers of the Wicklow Regional Game Council, the fourteen members of the executive committee of the NARGC, and the three trustees of the NARGC. An order permitting the joinder of those additional defendants was duly made on 14th October, 2016 but by the time the statement of claim was delivered on 24th March, 2017 the action against the officers of the Wicklow Regional Game Council, other than Mr. Fenlon, had been discontinued.

8 Although the terms of the orders sought were wider, the focus of the application made to O'Connor J. was on the annual report, specifically the proposed resolution. The statement of claim was wider. The plaintiff claims to have been defamed in the letter of complaint to the Law Society: which is said to have said that he acted unethically, put himself in a position of conflict of interest, and acted in breach of contract, in acting for the former employee and for the defendants in what I will call for shorthand the EGM action. He also claims to have been defamed at a meeting of the governing body of the NARGC on 6th August, 2016, a meeting of the executive committee of the association on 10th August, 2016, and another meeting of the governing body on 1st October, 2016, at which the outcome of the EGM injunction application was discussed: at each of which it is said to have been said that he acted unethically, in breach of his professional obligations, and in breach of the settlement...