High Court of Ireland Decisions

Judgment Title: Bula Holdings Ltd & Ors -v- Roche & Ors

Neutral Citation: [2008] IEHC 208


High Court Record Number: 2007 192 P

Date of Delivery: 06 May 2008

Court: High Court

“(a) An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts striking out or dismissing the plaintiffs’ claims on the grounds that the Statement of Claim delivered herein discloses no reasonable cause of action and/or is shown by the pleadings to be frivolous and/or vexatious;

(b) Further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing or, alternatively, striking out the plaintiffs’ claims against the defendants on the grounds that the proceedings have no reasonable prospects of success, are bound to fail and are an abuse of the process of the Court;

(c) Further or in the alternative, an order pursuant to Order 19 Rule 27 of the Rules of the Superior Courts striking out the Statement of Claim in entirety on the grounds that it contains matters which are unnecessary and/or scandalous and which may tend to prejudice, embarrass or delay the fair trial of the action;

(d) Further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiffs’ claims against the defendants on the grounds that the Statement of Claim fails to comply with the provisions of Order 19 Rule 5 of the Rules of the Superior Courts in that it purports to make allegations of (inter alia) fraud, deceit, misrepresentation, conspiracy, breach of fiduciary duty and other matters in respect of which particulars are necessary without setting out the necessary particulars,

(e) Such further and other order as to the Court shall seem fit or appropriate,

(f) An order providing for the costs of this application and of the proceedings including an order for such costs to be paid as between solicitor and client.

“(1) Damages for fraud, misrepresentation, conspiracy, negligence, breach of duty, including fiduciary duty and unlawful interference with the interests including economic interests of the plaintiffs, and obstruction and/or perversion of the course of justice.

(2) Declarations that the Judgments and Orders obtained by the defendants in certain proceedings brought in or about 1993 and again in or about 1997 be set aside, including any ancillary costs orders.

(3) An injunction directing that the defendants refrain from taking any steps to enforce any costs orders extant on foot of the above mentioned proceedings.”

Various ancillary reliefs are also claimed but it is not necessary to recite them.

“11. In each of the years 1993, 1994 and 1997, the defendants caused to be instituted High Court proceedings by way of petitions under Section 205 of the Companies Act, 1963, against Bula Holdings, Bula Trust, Loire Investments, Michael J. Wymes, Michael T. Wymes, Francis Plunkett Dillon and Donald Godson (the Oppression Proceedings).”

“18. At all material times during the course of the said oppression proceedings, the first, second and fourth-named defendants (in their various capacities) represented to the plaintiffs and averred to this Honourable Court that they owned and controlled or alternatively were entitled directly or indirectly to the entire beneficial interest of the shares in the second-named defendant, the subject of the oppression proceedings. The said representations and averments were also made on behalf of Crindle Investments (Crindle). These representations and averments were accepted as being true and relied upon, and which are now known to be false and/or were known to be false by the defendants at the time made, or alternatively became false but were not corrected at the earliest opportunity, or at all, thereby seriously and fatally misleading this Honourable Court and the plaintiffs herein, whereby this Honourable Court was induced into error to make decisions it would not or might not have made had it not been kept out of the true facts.

19. The fact is that at material times, the first, third and fourth-named defendants (in their various capacities) were not, in fact, the owners or alternatively were not entitled, either directly or indirectly, to the entire or any beneficial interest in the said shares, as same had been sold, transferred, assigned or otherwise disposed of to third parties or otherwise dealt with in circumstances where the said defendants were no longer the owners of the said shares or entitled to the beneficial interest therein directly or indirectly.

20. In or about 1995, there were changes in the ownership of the second-named defendant whereby legal ownership was vested through Delaware in a US limited partnership (Seafield Partnership) and a US limited corporation (Wellington Investments).

21. In the premises, at the time of the institution or alternatively during the course of the conduct of the said oppression litigation, the first, third and fourth-named defendants (in their various capacities) were not shareholders such as would allow them to make the aforesaid averments and representations, or entitle them to the necessary locus standi to institute, maintain or otherwise conduct the said oppression proceedings and claims of oppression on their behalves, or to obtain the orders granted to them by the High Court and Supreme Court.

22. In the premises, matters set forth in the pleadings in the said oppression proceedings were not accurate and known by the defendants not to be accurate at the time. Pleadings to the effect that defendants in those proceedings were shareholders or entitled directly or indirectly to the entire beneficial interest in the said shares in Crindle, were false and known to be false, at the time of the institution of the said proceedings. In the alternative, during the course of the said proceedings and by reason of the disposal or agreement to dispose of the said shares, the said facts relied upon and averments made were no longer and could no longer be true and correct, as the defendants well knew. In the premises, the defendants and each of them were required and obliged to bring these changed circumstances to the attention of the Court, to amend the pleadings and/or discontinue the entire or alternatively the bulk of the said action which they failed to do.

23. At all material times, the defendants as aforesaid had transferred or agreed to transfer their shareholdings to an undisclosed and covert third party or parties, and to act in the oppression proceedings on behalf of those parties.

24. At all material times, therefore, the defendants, together with an as yet undisclosed third party or parties, sought to undermine and compromise the plaintiffs in the conduct of the Tara and Bank proceedings and in the bona fide pursuit of their constitutional right to either litigate the said proceedings to a conclusion, to settle them, or to reject the terms of such offers of settlement as might have been proposed by the defendants in the Tara and Bank.

25. In the premises, the defendants herein who instigated and instituted the oppression proceedings and complained of conduct by the respondents prejudicial to their corporate and personal interests, did not have, or no longer had grounds, or a stateable case to support the complaint of oppression, which fact was kept secret or otherwise concealed from this Honourable Court and kept secret from the plaintiffs.

26. The misrepresentations which constituted the active concealment of material facts and so made, were acted upon both by this Honourable Court and the plaintiffs herein, were representations made either without belief in the truth of said representations or recklessly, careless as to whether they were true or false or knowing such statements to be untrue with intent to induce both the plaintiffs and this Honourable Court to act upon same, and/or knowingly were made in the absence of any genuine belief that the said representations were true or otherwise negligently and in breach of duty and without regard or any regard as to whether the said averments were either true or false.

27. At all material times, the defendants herein conspired or otherwise acting in concert with the said undisclosed and covert third party or parties to maliciously, and or acting with other injurious intent to defeat the legitimate claims of the plaintiffs, and thereby damage the plaintiffs by engaging and distracting them in otherwise unnecessary, redundant and moot proceedings as was the fact. The plaintiffs acting upon such false statements and averments thereby sustained damage, the said third party acting with the defendants to give effect to the disposal or agreement to dispose of the said shares, and acting in the execution of their common purpose thereby giving rise to the misrepresentations complained of, the said misrepresentations having been relied on when the facts relied upon and averments made were no longer and could no longer be true and correct as the defendants well knew.

28. At all material times, it was an object of the said secret transfer or disposition of the shares in Crindle and/or other interests therein, that the same would defeat the claim of the plaintiffs herein, bring about a situation whereby an undisclosed third party or parties could and would obstruct and/or prevent the plaintiffs from realizing their ambition, not only of resolving the existing proceedings, but of exploiting the enormous resources of the lead/zinc ore body underlying such proceedings.

29. On or about the 5th day of March, 1997, Mr Thomas J. Roche, in the course of the said oppression proceedings, swore an affidavit verifying the facts, which at paragraph 26 (a) set out in the oppression Petition dated 5th March, 1997, stated:
‘The entire issued share capital of the petitioner is as and from 13th January, 1995 beneficially owned by Mr Roche Junior through a structure involving a US Limited Partnership and US Liability Corporations’.
Which facts were false and known to be false at the material time, which averment was not true and which verification was untrue.
30. In support of the said pleadings, and in pursuit of the claim to be allowed take over the conduct of the Tara and Bank Proceedings and thus be in a position to control or influence the ownership of the ore body and/or its disposition, the said defendant swore an affidavit confirming to this court:
a) the veracity of the complaint of oppression of him as a shareholder; and

b) affirmed in that sworn affidavit that the matters set out both in the pleadings and in the same affidavit were true in circumstances, where he knew same were not true and could not possibly be true and which were, in fact, false and were known by the defendants to be false, and were persisted with in an attempt to obtain benefit for and on behalf of the covert third party or third parties, and thereby sought to usurp the inherent jurisdiction of this Honourable Court by means of the order of this Honourable Court, and control of both the Tara and Bula litigation and the subject orebody in a manner inimical to the administration of justice.
31. The fact is that the said averments were not true. They were false. The said defendants made these averments in the knowledge that the matters averred to were in fact not true, were in fact false, could not in fact be true and were intended to mislead the Court in the conduct of the litigation and in the administration of justice. The false averments were made deliberately to pervert the course of justice, compromise the plaintiffs’ legitimate litigation, undermine the plaintiffs in the conduct of their lawful commercial and personal affairs, cause them damage and bring about, inter alia, serious financial embarrassment and ruin as a direct result of this illegal interference with the plaintiffs’ legitimate interests.

32. An Affidavit in support of the 1997 Petition was also sworn by Mr. Roche Senior, on 18th March, 1997.

33. In the premises, the defendants and each of them conspired to injure the plaintiffs, and to injure the plaintiffs in the way of their business.

34. The defendants and each of them conspired to take advantage of pleadings and averments which they knew were not true and were, in fact, false, to facilitate and bring about the transfer of the Bula ore body to a third party or third parties at a considerable undervalue, as subsequently transpired.

Particulars of Complaint
A. In the premises, the defendants herein did not have, or no longer had a stateable case to support the complaint of oppression, which fact was kept secret from the plaintiffs herein and kept or otherwise concealed from this Honourable Court. The misrepresentations thereby arising constituted the active concealment of material facts and so made, were acted upon both by the plaintiffs herein and this Honourable Court. They were representations made either without belief in the truth of said representations or recklessly, careless as to whether they were true or false or knowing such statements to be untrue with intent to induce both the plaintiffs and this Honourable Court to act upon same, and/or knowingly were made in the absence of any genuine belief that the said representations were true or otherwise negligently and in breach of duty and without regard, or any regard, as to whether the said averments were either true or false.
B. At all material times, the defendants herein conspired, or otherwise acting in concert with the said covert third party or parties, to maliciously and/or with other injurious intent to defeat the legitimate claims of the plaintiffs and thereby damage the plaintiffs by engaging and distracting them in otherwise unnecessary, redundant and moot proceedings, as was the fact. The plaintiffs, in acting upon such false statements and averments, thereby sustained damage, the said third party acting with the defendants to give effect to the disposal or agreement to dispose of the said shares, and acting in the execution of their common purpose thereby giving rise to the misrepresentations complained of, the said misrepresentations having been relied on when the facts relied upon and averments made were no longer and could no longer be true and correct as the defendants well know, and:
i) Swearing an Affidavit on the 5th day of March, 1997, that the matters set out in the Affidavit sworn by him were true when same in all the circumstances were not in fact true, and were not subsequently rectified;

ii) Swearing an Affidavit on the 5th day of March, 1997 that the matters set out in the Affidavit sworn by him were true when same in all the circumstances could not be true and were known to the defendant not to be true, and were not subsequently rectified;

iii) Swearing an Affidavit on the 5th day of March, 1997 that the matters set out in the Affidavit sworn by him were true when same in all the circumstances could not be true and were recklessly stated by the said defendant to be true and were not subsequently rectified.
C. As a result of the matters aforesaid, the plaintiffs suffered considerable harm, loss, distress and damage.


Particulars of Damage
The costs of the Section 205 proceedings: €0.5 Million (estimated).”

“If Mr O’Dwyer’s overtures had been rejected, could anyone doubt the tactical and psychological damage that would have been done to the plaintiffs in seeking to mount this burdensome litigation.” (unreported judgment of 2nd March 1993, in the 1993 s.205 proceedings, previously referred to).

“What the petitioners seek is a detached, reasonable, objective assessment of the offers of comprise negotiated by Mr. O’Dwyer. Apart from the reluctance which the W Group have to engage in such an exercise, the fact is that an indispensable ingredient for that exercise would be the opinion of counsel as to the prospects of success in the pending litigation and perhaps some indication as to the quantum of damages or the relief which the plaintiffs’ might obtain in the event of their succeeding in one or other of the actions. It is not a question of the company or some directors refusing to part with such an opinion for reasons which are valid or otherwise. The incredible fact is that no such opinion was ever obtained or sought.”

“The Petitioner is an unlimited company which has an issued share capital of IR£1,100,000 divided into 100,000 ordinary shares of IR£1 each and 1,000,000 10% preference shares of IR1 each. Conor Holdings Limited owns 51,000 ordinary shares and all of the issued 10% preference shares and Mr. Roche Junior and Mr. Roche Senior each own 15,000 and 34,000 ordinary shares respectively. Conor Holdings Limited is the holding company of the Roche family, which includes as its shareholders Mr. Roche Senior, Mr. Roche Junior and (through Unity Trust) the daughters of Mr. Roche Senior including Mrs. Wymes. The directors of the Petitioner are Mr. Roche Senior, Mr. Roche Junior and Mr. Dillon.”

“Mr. Roche Senior and Mr. Roche Junior are individual plaintiffs in the Bank Proceedings and the Tara Proceedings having been joined as individual plaintiffs in such proceedings on the advice of Gore and Grimes. They also are liable for the deficiencies ultimately in the assets of [Bula Holdings] and the Petitioner, as both are unlimited companies. They have also guaranteed the great majority of the indebtedness of Limited to the Banks. The Roches have been seriously concerned for a substantial period of time as to the downside risk of continuing with the Bank Proceedings and the Tara Proceedings in the absence of clear legal advice as to the likely outcome of each set of proceedings. In addition, the Roches and the Petitioner are concerned that there is no information available to the boards of either the Company or Limited as to the current status of the Bank Proceedings, the Bank Subsidiary Proceedings and the Tara Proceedings.”

“Bula Holdings is, in turn, owned or controlled by the promoters by means of various investment companies. The interest of Mr. Roche Senior and Mr. Roche Junior (sometimes referred to as the Roches or the R Group) is held through Crindle Investments, the Petitioner herein. The interest of Mr. Michael Wymes is held through Bula Trust and that of Mr. Wood through Loire Investments. Again, in percentage terms the shareholdings in Bula Holdings are distributed as follows: 36% Crindle Investments; a further 36% Bula Trust; and 24% Loire Investments. It follows that the combined interests of Mr. Wymes and Mr. Wood (sometimes hereinafter referred to as “the W Group”) controls more than 50% of the voting rights in Bula Holdings. The other point to be emphasised is that Bula Holdings, Crindle (and its superior company), Bula Trust and Loire Investments are all companies whose members are exposed to unlimited liability.”

“In the present case, the company in question is not one which enjoys limited liability. Each of its members is liable without limit and, as it happens, the corporate members themselves are unlimited companies so that this liability reaches through to underlying individual shareholders. However, from the corporate point of view it is sufficient to say that the liability of members is unlimited. That is an interest of members to which proper regard must be had by those controlling the affairs of the company.”

“The Petitioner is an unlimited company owned by Mr. Roche Senior and Mr. Roche Junior and is the owner of 365,625 shares of the £1million issued shares of Bula Holdings. Bula Trust is a company owned by Mr. Wymes Senior and Junior and is the owner of 365,625 shares in Bula Holdings, Loire Investments is a company owned by Mr. Richard Wood and is the owner of 243,750 shares in Bula Holdings. Mr. Dillon and Mr. Godson are each the owner of 12,500 shares in Bula Holdings.”

“Amongst the findings made by Murphy J. in his judgment of 2nd March 1993, was one which does not appear to have been contested either in the High Court hearing of January 1994, nor upon this appeal to the effect that if the proceedings in both these actions were unsuccessful, either in establishing any liability or in establishing a liability which resulted in the effective clearing of the debts of Bula Limited to the Banks which have been guaranteed by the individual plaintiffs, that it was probable that the plaintiffs would be made bankrupt, but more significantly still, that in the event of such partial or complete failure of the action, in the words of the learned trial judge in that judgment at page 12, ‘the Roches who would now suffer to the greater extent’. He based that conclusion on a letter which had been written by Mr. Wymes to Thomas J. Roche on 28th August 1991, in effect demanding further legal costs of the action and pointing out that if the action were to be discontinued it would entail liability ‘for all our opponents costs to-date estimated at IR£1million to IR£2 million’ and added the significant phrase ‘you alone would be a mark for such costs’.”

“The Petitioner is an unlimited company which has an issued share capital of IR£11,000 divided into 1,100,000 A ordinary shares of 1p each. The entire issued share capital of the Petitioner is, as and from 13th January 1995, beneficially owned by Mr. Roche Junior through a structure involving a U.S. limited partnership and U.S. limited liability corporations.”

“I also beg to refer to paragraph 17(a) of my affidavit of 5th March 1997. There is a typographical error in that ‘13th January 1997’ should read ‘13th January 1995’”.

“29. I say and believe that it is significant that in the ‘Old Petition’’ the following particulars were given concerning Crindle (paragraph 19(a))…”

“30. I say that it is significant that in the ‘New Petition’ it is stated of the Petitioner, as follows (paragraph 26(a)) ….”

“31. I say and believe that it is noteworthy that the parties other than Mr. Roche Junior who stood to benefit from ownership of the Petitioner at the date of the ‘Old Petition’ no longer appear to have any direct or indirect personal interest or shareholding in the Petitioner. Furthermore, I say and believe that it would appear that the Petitioner has had a significant reduction of capital (down to £11,000) and that such beneficial ownership as Mr. Roche Junior above has in the company is now held through a U.S. limited partnership and U.S. limited liability corporations. I say and believe that while Mr. Roche gives no detail as to the precise ownership structure of the Petitioner, that I believe it is clear that Mr. Roche Junior is no longer exposed to unlimited personal liability in respect of its holding in the Petitioner, as was stated to be the case at the date of the presentation of the original petition. I say and believe that on 1st March 1996 an article in ‘the Phoenix Magazine’ disclosed that the Roche Group had managed to rearrange its ownership of its family interest in the Petitioner and in this regard I beg to refer to a copy of a letter dated 6th March 1996 from my solicitors to Mr. Roche’s solicitors, Arthur Cox & Co., upon which marked with the letters ‘MW9’ I have endorsed my name prior to swearing hereof. I say and believe that replies were eventually received from Arthur Cox & Co by letters dated 15th July 1996 and 1st August 1996 along with enclosures confirming that T.J. Roche was the sole and ultimate beneficial owner of the Roche interest in the Petitioner. I beg to refer to copies of the said inter partes correspondence upon which marked with the letters ‘MW10’ I have signed my name prior to the swearing hereof.”

32. In all the circumstances I say and believe that it now appears that the circumstances of Crindle in the ‘New Petition’ are significantly different from those that existed at the time of the ‘Old Petition’ in that its own shareholders are no longer exposed in any real sense to unlimited liability and I say and believe that the views previously expressed by Mr. Roche that the failure of the Bank and Tara Proceedings would expose him to ultimate bankruptcy no longer holds true. I say and believe that having regard to what I understand to be the value of the assets to which Mr. Roche Senior and Junior have recourse (being in the order of £40 million to £50 million) that even if full unlimited exposure to the amount of the guarantee judgment (IR£2.3 million) and/or to limited costs in the Tara Proceedings (up to the date of their withdrawal) would not cause them the level of financial ruin that Mr. Roche referred to in his affidavit sworn in support of the ‘Old Petition’. In particular, I say and believe that even if all of the Statute of Limitations points fail and Bula Limited were held indebted to the Banks in the full sum of their claim (in excess of £50 million) that Mr. Roche Junior could have no liability for same (not being a shareholder of Bula Limited) and any liability of Bula Holdings arising cannot prejudice him either, by virtue of what would appear to have been the alienation of his interest in the Petitioner.”.

“36(c) With regard to paragraph 26 of the petition I have already made observations in relation to the change in the shareholding of the Petitioner and I believe it to be significant that neither of the Roches appear to have any direct personal liability any longer arising out of any potential collapse of Bula Holdings.”

“13 In relation to paragraphs 29 to 31 I say and believe that this aspect is wholly irrelevant to the matters in issue. It is noteworthy in this context that, although devoting a significant number of paragraphs in his affidavit to the shareholding of Crindle, Mr. Wymes at no stage discloses that Mr. Justice Lynch found that his shareholding in Bula Trust ended at least partly in a limited company”.

“An order discharging and/or varying such orders as have been hereinbefore made in the above-entitled proceedings at the suit of the Petitioner pursuant to which orders the R Group have been granted control of negotiations conducted on behalf of the corporate plaintiffs for the settlement of the Tara Proceedings and/or of the Bank Proceedings by reason of the changed circumstances disclosed in the affidavit of Michael J. Wymes sworn in proceedings entitled The High Court 1997 Record Number 48COSCT6 on 10th March 1997.”

“All documents relating to the changes in the ownership of the shareholding of Crindle Investments referred to at paragraph 26(a) of the ‘New Petition’ when contrasted with the matters set forth at 19(a) of the ‘Old Petition’. In this respect we also require discovery of all documents relating to the identity of the U.S. limited Partnership and the Members thereof and the terms of membership (including all Articles of Association, Partnership Agreements and Contractual Documents connected therewith) and the U.S. limited corporations referred to at paragraph 26(a) of the ‘New Petition’ and/or relating to or establishing the beneficial ownership by Mr. Roche Junior of Crindle Investments through the medium suggested. In addition, we require discovery of all documents relating to the manner in which the former shareholders transferred their shares leading to the current ownership structure and/or relating to the consideration payable on the said transfers. In addition, we require discovery of all relevant documents relating to the reduction in share capital of Crindle Investments and the reasons underlying that reduction and to all advices (including professional advices) relating to all of the above.”

“The situation in relation to the present ownership of Crindle Investments is set out clearly in the Petition and Grounding Affidavit. The documents which you now seek are not relevant to any issue which must be determined by the Court at this stage. We note in this regard that despite the lengthy affidavit of 10th March 1997 Mr. Wymes does not address the ownership of Bula Trust. We now require the relevant information in that regard.”

“The position in relation to the present ownership of Crindle is not set out clearly in the Petition and Grounding Affidavit and must be addressed by your clients by discovery. It is clear that your client’s potential for exposure to unlimited personal liability through Crindle is not what it was in 1994. However, whether they have any continuing potential to suffer through Crindle at all must be clarified in detail, as must the true ownership position. Our client, Mr. Wymes, has no difficulty concerning the ownership of Bula Trust, which will be addressed in his replying affidavit to be delivered shortly.”

“27(ii) The Roches are no longer faced with unlimited liability exposure in the way that they had suggested in 1994.”

“30. With regard to paragraph 13 of Mr. Roche’s supplemental affidavit may I say the issue as to whether or not the Roches continue to face personal exposure through Crindle to potential unlimited liability is indeed of central relevance to these proceedings and is not at all irrelevant as he states. The matter of unlimited exposure through Crindle formed a crucial part of the Roches’s justification for presenting the ‘Old Petition’”

“37. Lastly, I say and believe that, given the fact that it does not appear to be disputed that the Roches’s have rendered themselves ‘Judgment Proof’ by virtue of the alteration in the ownership of the Shareholding of the Petitioner referred to in paragraphs 29 to 31 of my first affidavit and having regard to the claim that Bula Holdings is insolvent and thereby valueless, that the appropriate means to remedy the complaints made by the Roches in these proceedings (the validity of which is denied) is for this Honourable Court to direct that Crindle should transfer to Bula Trust and Loire Investments in proportions to be agreed by those companies and which can be notified in due course, all its shares, rights and shareholding in Bula Holdings for a nominal consideration to be fixed at £1 or some other nominal sum and for Mr. Roche to resign from the board of directors of Bula Holdings and from Bula Limited.”

“A change which had occurred since the earlier proceedings and one to which the W Group attach very considerable importance was the alteration in the shareholding in Crindle Investments. As conceded in paragraph 26(a) of the ‘New Petition’:-
‘The entire issued share capital of the Petitioner is as and from 13th January 1995, beneficially owned by Mr. Roche Junior through a structure involving a U.S. limited partnership and the U.S. limited liability corporations’.
This is a significant change. No doubt it was made with the intention of protecting the R Group and such wealth as they or any of them may possess from even further losses and liabilities incurred by Holdings. Assuming that this arrangement achieves its purpose, the Roches will be insulated from further loss. I accept that this is a factor which should be taken into account. It will affect the extent to which the R Group might be damnified by the continuation of hopeless and expensive litigation. On the other hand, it does not affect the principle that the determination of the W Group to pursue such litigation may constitute conduct oppressive to Crindle Investments. It relates only to the extent of the oppression.

Counsel on behalf of the W Group drew attention to the change in shareholdings for the protection which it affords to the R Group but also in the context of the attitude adopted by the R Group since the commencement of the mining venture…..

…..It is my judgment that the changed circumstances have rendered the relief granted by the Supreme Court inoperative, but that the same changes have resulted in a similar oppression by the W Group of the R Group calling for a similar type of relief….

I accept too that the steps taken by the R Group to insulate themselves against personal liability from the losses and liabilities of Bula Holdings has reduced their exposure to liability for current outgoings of that company.…” (page 10 et. seq. of the judgment).

“The ‘New Petition’ was presented on 5th March 1997 and the proceedings heard by Murphy J. on 20th March 1997: again, he directed that the proceedings be heard in camera. It transpired at the hearing before Murphy, J that there had been a change in shareholding in the Petitioner: it was now beneficially owned by Thomas. Roche Junior through a structure involving a U.S. limited partnership and U.S. limited liability corporations. It was accepted on behalf of the R Group that this change was effected so as to protect such assets as the individual members of the R Group may possess from any further losses or liabilities incurred by Bula.”

“Secondly, it was urged that, since the R Group had insulated themselves from personal liability arising out of their former involvement in Bula through the transfer of ownership of the Petitioner to the U.S. entities, justice required that the W Group rather than the R Group should be given control of the litigation.”

“…the W Group have, in any event, contended on the hearing of the appeal to this Court that two circumstances have arisen since the last hearing in Court – the raising of the Statute of Limitations issue and the change in the shareholding of the Petitioner – which should have led to the conclusion in the High Court that the affairs of Bula were now being conducted in an oppressive manner by the R Group and that this conduct could be brought to an end by requiring the Petitioner to sell his shares in Bula to the W Group for a nominal consideration.”

“It is not in dispute that the R Group, by altering the share ownership of the Petitioner have protected themselves from future personal exposure arising out of this litigation. It is also evident that much of the acrimony and suspicion which has developed between the R Group and the W Group derives from the belief of the W Group that they were saddled with the unfair burden of actually pursuing this litigation while the R Group were engaged in quite separate, and the W Group claim, hugely profitable activities…… What had to be determined on the hearing of the ‘Old Petition’ and must be considered again in the altered circumstances which have led to the ‘New Petition’ is whether allowing the W Group by reason of their majority shareholding to have control over any negotiations for a possible compromise of the two sets of proceedings will be oppressive to the Petitioner and disregard of its interests as a member.”

“(a)
(i) Arthur Cox (in the person of a partner, Stephen Hegarty) disclosed in the offices of Arthur Cox on 15th January 2001, that Crindle was not actually in the sole beneficial ownership of Mr. Roche Junior. The immediate background to this milestone was the negotiation and drafting of a Deed of Settlement involving the main parties hereto. The W Group was professionally represented by Mr. Michael Peart. Solicitor, (as he then was) in the matter. The R Group was represented by Mr. James O’Dwyer and Stephen Hegarty. Mr. O’Dwyer was the Managing Partner, and Mr. Hegarty a Partner in Arthur Cox. I say that Ms. Foley was not included in the negotiating and legal team which dealt with Mr. Peart, Mr. Wood and myself on the Deed in 2000/2001. [The court is omitting a further sentence in this paragraph as irrelevant]
(ii) The Deed incorporated a settlement offer worth £15 million on behalf of the parties to Bula’s banks and the Receiver, pursuant to which the assets of Bula would come under the control of the W Group (now differently defined as Mr. Wood, myself, our respective companies and Wymes Family Trusts). The R Group was contributing £5 million and the W Group were writing off much larger amounts of bank realised monies. As part of the transaction, a mortgage covering the R Group contribution was to be granted to the R Group (now differently defined as Mr. Roche Junior, the Estate of T. C. Roche, Crindle and Conor Holdings) over the Bula assets. This latter facet caused Mr. Wood and myself to be extremely sensitive as to the ownership of Crindle (the ownership of Conor was known to us), and in particular any possible involvement of Mr. Brendan Hynes, the former Chief Executive of Tara Mines Ltd. The reason for this sensitivity towards Mr. Hynes is explained later at paragraph 59.

(iii) On 11th January 2001, my request that the ownership of Crindle be inserted in the Preamble of the Deed was refused by Mr Hegarty. This request was again refused on 13th January 2001 by him, when he declared that “he had discussed the possibility and was told no”.

(iv) In the course of the finalisation and execution of the Deed, Arthur Cox and Mr Roche were not prepared to accept a provision in the Deed affirming that Crindle was 100% owned by Mr Roche Junior, although he had previously sworn he was the sole owner of that company, albeit through Delaware.

(v) On 15th January 2001, Mr Hegarty was not willing to identify the full extent of the ownership of Crindle or the non-Roche beneficial ownership in the context of the proposed loan and mortgage. At that stage, there was a serious stalemate, which I described as a “cow on the line”. I complained that we were being asked to sign a contract with parties whose identity was not being disclosed, and in fact refused. I added that we thought we were dealing with Mr Roche Junior, but for all we knew it could be Mr. Hynes, whereby the risk profile was increased enormously from our viewpoint. In reply to a question as to who actually owned Crindle, Mr Hegarty said that he did not know, and that if he did know, he could not say. However, by way of a compromise accepted by us, Mr Hegarty said he could be willing to give “the gist” as to where the non-Roche beneficial ownership in Crindle did not lie. He stated that if I identified a party such as Mr Hynes, that this would be “doable”, and thereby give us some comfort.

(vi) At a later meeting on the same day, Mr. Hegarty was prepared to make a representation within the Deed in respect of certain other interests identified by me, namely O’Reilly interests. This was after he had taken time-out to obtain the required information and instructions from a person who did have the knowledge of the beneficial ownership of Crindle. As I understood it, that person was Mr. O’Dwyer. As a result paragraph 12.3 of the seventh draft of the Deed dated 15th January 2001 was inserted in the following terms:
“None of Mr Brendan Hynes, Sir A. J. F. O’Reilly or any person or entity acting in concert with both or either of them, or on their behalf, nor any business competitor of Bula or Holdings, whether actual or potential, has any interest in Crindle or the shares it holds in Holdings, nor is Mr Roche Junior, nor is Crindle acting as a proxy for, or on behalf of any such person or entity”. (Emphasis added)

I beg to refer to a copy of the said seventh draft, upon which marked with the letters “MW5” I have signed my name prior to the swearing hereof. I say that Clause 12(3) was in exactly the same terms in both the final draft and the Deed as executed on the following day, 16th January 2001. The executed Deed is exhibited by Ms Foley at “IF13”.

(vii) The time limit for final agreement on the terms of the Deed was set by Arthur Cox for 15th January 2001. This was for the stated purpose of enabling an adjournment application to Barr J. on Statement of Claim and Discovery Motions against the Banks which were due to be heard in the Bank proceedings on 16th January 2001. The Motions were seeking amendments to the Statement of Claim pleading changes to the beneficial ownership of (a) the securities comprised of the Bula Mine mortgages at Navan, and (b) the guarantees of the individual guarantors, and in particular the Roche guarantees. Discovery in respect of (a) and (b) was being sought including any payment in respect of or on foot of the Roche guarantees by a related party, namely Ann Roche (nee Doyle), the wife of Mr Roche Junior. Accordingly, the time limit of 15th January 2001, was statedly dictated by the timing of the Motions on 16th January before Barr J.

(viii) In a nutshell (having let us know of the non-Roche ownership of Crindle), Mr. Roche and his legal advisers, in order to rectify the stalemate and secure the execution of the Deed by the time limit of 16th January set by the Motions before Mr Justice Barr, were satisfied to say where the non-Roche ownership did not lie, but not divulge where it did factually lie. To put it another way, they were prepared to certify who it was not, but not who it was.

(b) The offer to the Banks was to be open to 19th January 2001, or any agreed later date. After its transmission to the Receiver and the Banks, certain communications with relevance to the Crindle ownership status and generally took place between our Solicitors, Pearts, and Mr O’Dwyer. These included as follows:
(i) In a letter dated 17th January 2001, Mr Peart referred to “the problems which arose in relation to the ownership of the R Group in recent days” as having been a factor in the delays encountered in getting the document finalised and which were no responsibility of his clients. (the Arthur Cox reply was dated 18th January 2001).

(ii) By letter of 22nd January 2001, Mr Peart, wrote, inter alia, as follows:
“It is a cause of increasing apprehension and disquiet to the W Group that they are still being kept in the dark on the full identity (which could conceivably embrace Banks/State) of the R Group, and thus the true ownership of those you represent and are instructed by. There is also dismay at the previous testimony and written representations to the effect that Crindle was in the sole beneficial ownership of Thomas J. Roche in Delaware. It might help sentiment if, even at this stage, you were able to be frank and forthright on the full ownership of the R Group”.
In his reply dated 24th January 2001, Mr O’Dwyer said that the suggestions implicit in the above quoted paragraph had no basis.

(iii) In a letter of 30th January 2001, Mr Peart pointed out that, “Arthur Cox had not been prepared to accept a provision in the Deed affirming that Crindle was 100% owned by Mr Roche Junior, although he had previously sworn that he was the sole owner of that company, and that on 11th January his clients’ request that the ownership of Crindle be inserted in the Preamble to the Deed was refused”. Mr Peart added that his clients were naturally and justifiably alarmed by these developments. He also pointed out that Arthur Cox “were still not prepared to divulge, as had been sought in his previous letter, the full ownership of the R Group and thus Crindle”. Mr Peart went on to say that “the ownership of Crindle was being deliberately kept from the W Group”; that they had learned by chance that Mr O’Dwyer has suddenly ceased to act for three of the four constituents of the R Group; and that Mr O’Dwyer could not confirm the past or present interest of the R Group in the mortgages/charges granted by Bula over its assets. (The Arthur Cox reply was dated 31st January 2001).

(iv) By letter of 14th February 2001, Mr Peart stated to Mr O’Dwyer that “it was a matter of ever-increasing concern to his clients that the full ownership of the R Group continued to be kept from them.
(v) At a meeting on 6th February 2001 at the offices of Arthur Cox attended by Messrs O’Dwyer, Hegarty, Wood and myself, in relation to the delay in the Banks coming to a decision on the proposal and the relevance of a pending decision by Barr J. on a Discovery Motion in the Bank Proceedings, whereby the Banks seemed to be twin tracking, I complained that “there had been misrepresentation, including by Arthur Cox, on the ownership of Crindle”. Mr O’Dwyer stated that “one of the greatest obstacles” was that the Deed “may not be worth the paper it is written on”. Almost immediately, Mr. O’Dwyer became agitated and got up from the table. He left the room with Mr Hegarty in his wake. No words were spoken. Mr Wood and I made our way to the lift. We had not been afforded the opportunity to seek to ascertain the reason that the Deed (which had been at least six months in gestation and entailed significant time, effort and cost) was deemed by Mr O’Dwyer as possibly not worth the paper it was written on.

(vi) By letter of 15th February 2001, we were notified by the Receiver through Mr O’Dwyer that the Banks were not interested in pursuing the proposal.

(vii) In a letter of 11th September 2001 to me, Arthur Cox referred to, and enclosed by way of service, a Plenary Summons issued a year earlier on 21st September 2000 in the case of 2000 No.10997p. This sought declaratory relief in relation to resolutions and agreements pursuant to a meeting of the Board of Bula Holdings on 29th September 1994. It was proposed in that letter that the proceedings be discontinued against, my son, Michael T. Wymes. In a reply of 13th September 2001, Mr Peart stated that in the circumstances where Arthur Cox “had disclosed in January of that year that Crindle was not in the sole legal beneficial ownership of Thomas J. Roche, and neither Mr Roche nor Arthur Cox were prepared to disclose the true and full extent of such ownership”, he was not in the position to advise his clients on the matter of my son not continuing to be a party to the proceedings.

(viii) There is no record of a reply to this letter, whereby Arthur Cox did not contest the statement of Mr Peart. This particular correspondence was initiated by Ms. Foley.”

“With further reference to the ownership of Crindle, I say that, in a different context, it was necessary for Ryan Smyth to make enquiries in the period December 2004 to March 2005, and to take up copies of files from other firms, including Vincent & Beatty, Solicitors. That firm had acted as advisers to Mr. Roche’s three sisters, including my wife, Eleanor. An examination of the documents produced a Vincent & Beatty Memorandum in the name of Miriam Delaney, a Partner of that firm, in respect of a meeting in KPMG on 3rd April 1997. At that meeting, she was advised that Mr. Roche had ‘extricated himself from Crindle as of 1st January 1995’. The meeting was attended by Mr. Mike Hayes of Arthur Andersen (Mr. Roche’s accountants and tax advisers) and Julie O’Connell of Gerrard Scallan & O’Brien (also acting for Mr. Roche). I beg to refer to a copy of the said Memorandum upon which marked with the letters “MW9” I have signed my name prior to the swearing hereof.”

‘Arthur Cox (in the person of Stephen Hegarty, a partner) ultimately disclosed in January 2001 to Mr Wymes that Crindle was not actually in the sole beneficial ownership of Mr. Roche.’
I never said that to Mr. Wymes. Indeed, at paragraph 55(a) (v) of his Affidavit, Mr. Wymes says as follows:-
‘In reply to a question as to who actually owned Crindle, Mr. Hegarty said he did not know, and if he did know, he could not say.’
5. That statement by Mr. Wymes at paragraph 55(a) (v) represents the true position with regard to my knowledge of the ownership of Crindle Investments (Crindle). I did not know then, and I do not know now, who owns Crindle. ……”

10. “ I wish to make it absolutely clear, therefore, that at no stage did I disclose to Mr. Wymes or to anyone on his behalf whether in January 2001, or otherwise, that Crindle was not in the beneficial ownership of Mr. Roche or that there was any non-Roche beneficial ownership in Crindle. I simply did not know then (and do not know now) who is the beneficial owner of Crindle …….”

56. “……….. . Reference was made in correspondence from Ryan Smyth & Co. and in Mr. Ryan’s Affidavit of 14th June 2007, to Stephen Hegarty (a partner in the firm of Arthur Cox) and to alleged statements by Mr. Hegarty as to the alleged knowledge of Mr. Hegarty that there was non-Roche ownership of Crindle (see, in particular, the letters from Ryan Smyth & Co to Arthur Cox of 2nd April 2007 and 9th May 2007 and paragraph 4 of Mr. Ryan’s Affidavit of 4th June 2007). Curiously, no reference is made in the statement of claim to Mr. Hegarty and it is entirely unclear on what basis it is alleged comments allegedly made by Mr. Hegarty (which I am informed by Mr. Hegarty and believe were not made) have any bearing on the issue as to whether representations made to the court concerning alterations in the ownership structure of Crindle were false and misleading, as alleged, even if that could provide any basis for interfering with either the order for costs made on 2nd August 2002 (in respect of the reserved costs in the course of the 1993 Section 205 proceedings), or any of the judgments and orders in either the 1997 Section 205 proceedings or the 1997 Section 205 proceedings. I should, at this stage, briefly explain the limited involvement of Mr. Hegarty in matters concerning Mr. Wymes.

57. I am informed by Mr. Hegarty and believe that he met with Mr. Wymes on three occasions in December 2000 and January 2001, namely, 12th December 2000, 8th January 2001 and 11th January 2001. His involvement in those meetings arose from the fact that James O’Dwyer was unable to attend the first and third of those meetings. Mr. O’Dwyer requested Mr. Hegarty to attend those meetings as the parties did not wish negotiations which were then being conducted to be delayed on account of his unavailability. Furthermore, Mr. O’Dwyer asked Mr. Hegarty to attend as he had in the past advised Conor Holdings in relation to matters which were unrelated to the Bula litigation. In attending those meetings, Mr. Hegarty’s instructions were to take down the comments of Mr. Wymes, Mr. Wood and Mr. Peart who was then acting as solicitor to the W. Group.

58. I am further informed by Mr. Hegarty and believe that at the meeting on 11th January 2001, Mr. Wymes stated that he wanted to know who they were dealing with with regard to certain loans which were to be provided for in a deed which was subsequently executed on 16th January 2001, and which was a final attempt to resolve the disputes between the parties and who would be holding shares in Crindle and Holdings while the loans were outstanding. I am informed by Mr. Hegarty and believe that in order to address those concerns, there was a discussion concerning the drafting of various undertakings which Mr. Wymes wanted included in the agreement and which were eventually reflected in Clause 8 of the Deed of 16th January 2001.

59. I am informed by Mr. Hegarty and believe that he never advised Crindle and did not know then, and does not now know, who owns Crindle. It came as considerable surprise to Mr. Hegarty that Mr. Wymes was alleging (in the correspondence emanating from Ryan Smyth & Co. referred to earlier) that Mr. Hegarty made a statement to Mr. Wymes in January 2001 with regard to the ownership of Crindle. Mr. Hegarty believes that Mr. Wymes may be confused about this. Mr. Hegarty does recall informing Mr. Wymes that Mr. Roche was not the sole owner of Conor Holdings as that was a matter within Mr. Hegarty’s knowledge. Furthermore, Mr. Hegarty has confirmed that what is stated in paragraph 4 of Mr. Ryan’s Affidavit of 14th June 2007, makes no sense, as at all times in the three meetings at which Mr. Wymes was present and which were attended by Mr. Hegarty, it was Mr. Wymes who understood the background to the transactions and it was he who was the person who confirmed he was eventually satisfied with the draft terms which he requested be included at clause 8 of the Deed. I beg to refer to a copy of the Deed of 16th January 2001, upon which marked with the letters “IF13” I have signed my name prior to the swearing hereof. Mr. Hegarty is currently away on holidays and will not be back until 16th July 2007. If necessary, on his return, Mr. Hegarty will swear a short affidavit confirming these facts. However, I have checked these facts with Mr. Hegarty before swearing this Affidavit and he has confirmed that they are correct.”

“67. Paragraphs 56 to 59 of the Second Affidavit of Ms. Foley make reference to Stephen Hegarty. I regret to have to say that paragraphs 56 to 59 dealing with Mr. Hegarty (who has not as yet sworn any affidavit) are grossly inaccurate, incomplete and most misleading. My evidence in this respect is based on contemporaneous notes of the meetings held on the negotiation and drafting of the Deed dated 16th January 2001, as well as consequent related correspondence, particularly in the immediate aftermath to September 2001. I beg to refer to my copy notes of the meetings upon which pinned together and marked with the letters “MW10” I have signed my name prior to the swearing hereof. The correspondence has already been exhibited at “MW10”,

In particular:

(a)
(i) Mr. Hegarty did not only meet me on three occasions in December 2000 and January 2001, as is put in evidence by Ms. Foley on behalf of the Defendants. The reality is that during that period, Mr. Hegarty and I had serious and substantive business meetings on seven different occasions. The meetings were variously also attended by Mr. O’Dwyer, Mr. Peart and Richard Wood. The dates of the seven meetings were as follows:

a date prior to 13th December 2000

13th December 2000

8th January 2001

11th January 2001

13th January 2001

15th January 2001 (morning)

15th January 2001 (evening)

(ii) Mr. Hegarty had two further very serious business meetings (which Ms. Foley omits to record) with me in February 2001. These were on the dates as follows:

5th February 2001

6th February 2001

(iii) Accordingly, Ms. Foley only records and takes account of three of the nine meetings which took place involving Mr. Hegarty and myself in the period December 2000/February 2001, all of which were held at the office of Arthur Cox. Mr. O’Dwyer did not attend the meetings held on 13th December 2000, 11th, 13th and 15th January 2001, or the meeting held on 5th February 2001.
(b) To say that Mr. Hegarty’s function (as is stated by Ms. Foley) was merely “to take down comments” of Mr. Peart, Mr. Wood and myself, is to entirely understate and completely misrepresent his role. Mr. Hegarty, a partner in Arthur Cox, was not a mere note taker. He was represented by Mr. O’Dwyer and himself as carrying a major responsibility for negotiating and drafting the Deed, and reporting to Mr. O’Dwyer, his fellow partner, and Mr. Roche, his client. In practice, this was the function performed by him, at the meetings with Mr. Peart, Mr. Wood and myself. All seven drafts of the Deed in the period 12th December 2000 to 15th January 2001 bore his initials “SNH”. These drafts were dated 12th December 2000, 13th December 2000, 10th January 2001, 12th January 2001, 14th January 2001 and 15th January 2001.

(2). In this respect, I beg to refer to copies of the first page of each of the said seven drafts upon which pinned together and marked with the letters “MW11” I have signed my name prior to the swearing hereof.
(c) The fact that Mr. Hegarty was dealing with negotiations and drafting and amendments is also demonstrated by a faxed letter sent by him on 13th January 2001 to Mr. Peart (copied to Mr. Roche and Mr. Wood) in which he stated:

‘Further to the re-draft of the Deed which I sent you yesterday evening, I attach another re-draft in which I have included some further amendments. This draft is marked to show all amendments made today and yesterday.
Please note that the attached draft has not been approved by our clients. Accordingly, this draft is subject to such further comments as they may have.’
I beg to refer to a copy of the said letter and re-draft upon which pinned together and marked with the letters “MW12” I have signed by name prior to the swearing hereof.

(d) The discussions on whom we “were dealing with” in respect of the proposed loan and mortgage under the Deed related not only to Clause 8 of the Deed, but also to Clause 5.4, and more critically to Clause 12.3, which as aforesaid at Paragraph 55(a) (vi) reads as follows:

“None of Mr Brendan Hynes, Sir A. J. F. O’Reilly or any person or entity acting in concert with both or either of them, or on their behalf, nor any business competitor of Bula or Holdings, whether actual or potential, has any interest in Crindle or the shares it holds in Holdings, nor is Mr Roche Junior, nor is Crindle acting as a proxy for, or on behalf of any such person or entity”. (Emphasis added)

This Clause was inserted in the circumstances already described at paragraph 55(a).

(e) Ms. Foley says that Mr. Hegarty recalls informing me that Mr. Roche was not the sole owner of Conor, and that I may be confused. In this respect, I say that:

(i) the insertion by agreement of Clause 12.3 in the Deed which clause, expressly addresses the ownership of Crindle (and only Crindle), was only called for, and was and is only explicable by Mr. Hegarty having made known that Crindle was not in sole Roche ownership.

(ii) I had no need to enquire of Mr. Hegarty in January 2001 as to whether Mr. Roche was the sole owner of Conor. I was fully aware of the ownership of Conor (which was on public record), and knew that my wife (together with her two sisters) held a significant beneficial shareholding of 25% in Conor through a company called Unity Trust.
68. I reiterate the total truth of my dealings with Mr. Hegarty as set out at paragraphs 55 and at 67(a) to (e) above. To conclude on this, I would like to say that I had a good constructive working relationship with Mr. Hegarty. He was complimentary of the way Mr. Wood and I did our business with him, describing it as “old school”. He stated that “it was a pity that there was not more like us around the Town”.

“6. In several places in his affidavit, Mr. Wymes makes reference to the fact that I had to obtain instructions from Mr. O’Dwyer concerning drafting changes which were being sought by Mr Wymes with regard to the Deed which was being prepared. This is correct and reflects my role in the drafting and preparation of the Deed. My involvement in these meetings arose from the fact that Mr. James O’Dwyer, who was, and had been, responsible for this file for many years, was unable to attend all the meetings with Mr. Wymes. Mr. O’Dwyer had called on me to attend these meetings as the respective parties did not wish the negotiations to be delayed on account of his unavailability. Furthermore, Mr. O’Dwyer had asked me to attend as I had in the past advised Conor Holdings in regard to matters which were completely unrelated to the Bula litigation. In attending these meetings, my instructions were to take down the comments of Mr Wymes, Mr Woods and their solicitor at the time, Mr. …Peart.

7. In regard to the number of meetings I attended with Mr Wymes, I must say that the information that was given by Ms. Foley in her affidavit of 11th July 2007, was made in reliance on information I gave her and on a privileged memorandum which I prepared somewhat in haste on the evening of 5th July 2007, which was the end of a very busy period for me and my last full day in the office prior to a week’s leave. Having now taken more time to gather all relevant documents which I sent to storage on this matter six years ago, I can confirm that Mr. Wymes’ recollection in regard to the number of meetings is correct and that I was incorrect in informing Ms. Foley that there were only three meetings.”

“8. I must say that if Mr. Wymes had instructed his solicitor to make clear in his affidavit of 14th June 2007 that he was alleging that I had “ …ultimately disclosed …that Crindle was not in the beneficial ownership of Mr Roche” at a meeting on 15th January 2001, I would have undertaken the efforts which I have since done, to locate the misfiled attendance notes of my meetings of 15th January 2001. However, having located them and reviewed them, I must say that I am left with the very real suspicion that this lack of precision on Mr. Wymes’ part is because he has known since our meetings in December 2000 and January 2001 that I knew nothing about the ownership of Crindle. I must also say that the inclusion of clause 12.3 in the Deed was requested by Mr Wymes at what was virtually the end of the drafting process for the Deed and the instructions as to its terms came directly from Mr Wymes. Moreover, clause 12.3 was not something that I would have offered by way of drafting or would ever have suggested, given the reference to persons about whom I had no personal knowledge.”

“47. I say that according to the records and my recollection, Michael Peart was in attendance with me, and took an active part on 15th January 2001 at the offices of Arthur Cox.

48. The first session on that day lasted from about 11am to 1pm. At that morning session, Mr Hegarty suggested that I draft the wordage of a clause acceptable to us, taking account of what he had just told me i.e. that the identification of a person such as Mr. Hynes would be “doable”. The second session was very much shorter, and after its termination, I contemporaneously recorded my conclusion on my notes that the ownership of Crindle was with the Banks or the State (as opposed to Mr. Roche Junior). This general conclusion bore a question mark, and I should stress was entirely premised and dependent on the veracity of Mr. Hegarty’s verbal representations to us in relation to Mr. Hynes, O’Reilly interests and concert parties.

49. Contrary to what is suggested by Mr. Hegarty at para. 8 of his Affidavit, I say that mine was not the sole input to Clause 12.3. In the course of the afternoon session on 15th January 2001, and after Mr. Hegarty had come to be able to confirm to us that O’Reilly interests were not involved with Crindle, Mr Hegarty stated that he would amend the draft Clause 12.3 accordingly. During a telephone conversation later at 7.10pm on the same day, Mr Peart informed Mr Hegarty that we were ready to receive the engrossments of the Deed for signing “subject to Dr. O’Reilly” interests be(ing) included in Clause 12.3. In the event, the amendment to Clause 12.3 to such effect was made by Mr. Hegarty, and was included in the engrossments of the Deed furnished by him to Mr. Peart for execution.”

“52. I say that I am not in a position to confirm conclusively to this Honourable Court where the ownership of Crindle rested in 1997. Arthur Cox/Mr Roche were not prepared to and refused at the meetings in January 2001, and in the subsequent correspondence with Mr Peart, to disclose the full ownership of the R Group, and thus Crindle.”

“53. From the very outset of his correspondence with Arthur Cox (as is demonstrated by his letters of 17th January and 22nd January 2001), Mr. Peart enunciated his understanding, and indeed conviction, of the disclosure having been made (in the context of the problems which he said had arisen in relation to the ownership of Crindle) that the ownership lay other than with Mr. Roche.

54. The fact that Mr. Peart was present on 15th January 2001, and that he and myself were at idem and certain that it had been communicated to us that there was non-Roche ownership of Crindle, underscores, supports and corroborates the evidence of my account and conclusion. This certainty of Mr. Peart is demonstrated by the content and strength of his subsequent correspondence. It is the Plaintiffs’ wish to call Mr. Justice Peart as a witness at the trial….”

“It is now apparent that the paranoia and misconceptions which obstructed and frustrated all of our previous settlement efforts are now manifesting themselves again in your most recent correspondence. We do not propose, therefore, to devote any time to addressing this arid speculation other than to say that the suggestions implicit in the first paragraph on page 2 of your letter have no basis in substance or in fact.”

“Notwithstanding the absurdity of your questions (having regard to what has been said many times before) we confirm again that our clients have no interest whatsoever in the Banks’ mortgages, and we are not instructed by or on behalf of any, other than Tom Roche. Your suggestions to the contrary are gratuitously offensive.”

“It is apparent from your letter of 30th January that Michael Wymes is determined to persist with his illusory claims of “hidden agendas”. I do not propose, therefore, to expend any more time addressing this absurdity.

With one exception, the entire first page of your letter is devoted to the irrational conclusion that, by reference to what I said in the last paragraph of my letter of 24th January, we only act for Tom Roche and not the other parties mentioned.

It must be apparent to you (and hopefully to Michael Wymes) that the Roche Estate, Crindle Investments and Conor Holdings, being inanimate entities, can only act through a person duly authorised on their behalf. Tom Roche is an executor of his late father’s estate and a director of Crindle Investments and Conor Holdings. He is authorised to act on their behalf and has instructed us accordingly.”

“We discussed the Bula situation. Basically, Tom extricated himself from Crindle as of 1st January 1995, and whilst he cannot be absolutely certain, he feels that the Bula Liabilities will stop at Crindle and, because he no longer has an involvement in it that he is safe. However, that is not cast in stone and there is no way he will give any warranty to the girls about there being no other encumbrances attaching to the NTR shares. The girls will have to take his word for it.”

“It is clear from the text of that paragraph that what is referred to here, was the change in the ownership structure of Crindle, namely, the fact that the Bula liabilities would stop at Crindle because of the interposition of limited liability companies. In any event, the underlying fact remains unchanged. The ownership structure of Crindle is as it was in January 1995, and as was disclosed to the court at all times. The fact that Mr. Wymes places an alternative interpretation on a memorandum prepared by a party who, on his own account, was only recording information she has been told, does not alter the underlying facts.”

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

“The Applicants’ proceedings are of the baldest kind, without any basis in law or fact, and, with the exception of Mr. Iordache’s case, without any attempt to rely on proved individual circumstances either in relation to attacking the decisions taken in respect of the individual applicants or on the broader aspects of their claim. In my view they are all frivolous, vexatious and doomed to fail: indeed they are scarcely recognisable as legal proceedings at all.”

“In my view, nothing which could properly be described as amendment could save these proceedings. If, hypothetically, the applicants or any of them have any statable cause of action, it would require to be expressed in proceedings in which bear no resemblance whatever to those presently under consideration.”

“The statement of claim delivered in the proceedings and in which the third named defendant was joined as a defendant, claims in paragraph 4b an order for damages against the first, second and third named defendants for deceit. That is effectively a claim of fraud against the third named defendant and the court is satisfied having examined with care the statement of claim filed on behalf of the plaintiff that even if the facts there alleged were proved, it would not in any way substantiate so grave an allegation as an allegation of fraud against any person but particularly a solicitor and an officer of this court.

…

The court is satisfied that the learned High Court judge was perfectly correct in dismissing these proceedings. The court is so satisfied not only because they disclose no cause of action against the third named defendant but because they are also satisfied that in the inherent jurisdiction of the High Court it was proper to strike the proceedings out as being a clear abuse of the process of the court.”

“While the words ‘frivolous and vexatious’ are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”

“On the Affidavits before me, it is quite clear that the claim against the second named defendant, as at present constituted and pleaded, is unsustainable. I am satisfied that the second named defendant is entitled to relief under Order 19 rule 28, that is to have the claim against it struck out on the grounds that it discloses no reasonable cause of action. Accordingly, I propose to make the order sought.

It was canvassed before me that I should deal with the matter on the basis of the true nature of the claim against the second named defendant and that the plaintiff be allowed to further amend his pleadings at this stage to reflect the true cause of action. Should I accede to this, the second named defendant proposes to rely upon delay. Much of the affidavits before me deal with the subject of delay. However, I have determined that I should deal with the matter solely on the basis of the pleadings as they stand at present. On the information before me, it seems almost inevitable that the plaintiff will obtain judgment in default of pleading against the first named defendant. He can then, if so advised, institute proceedings against the second named defendant as the indemnifier of the first named defendant. In those proceedings, the defendant (the second named defendant in these proceedings) can raise the issue of delay and seek to have the proceedings struck out. Rather than proceed on the basis of a notional further amended statement of claim, I am satisfied that it is preferable that I should allow the matter to proceed on the basis of the proceedings as they stand.

In deciding to strike out the plaintiff’s claim, I am influenced by the circumstance that the plaintiff has had from 11th January 2005 to date, to deliver an appropriate amended statement of claim setting out in appropriate terms his claim against the second named defendant but has failed to do so: the amended statement of claim delivered, is totally defective in that it fails to disclose the true basis of the claim against the second named defendant. The defendant in this case has to meet a claim which arose more than 25 years ago and in these circumstances the onus on the plaintiff, having joined the second named defendant, was to proceed promptly and he has not done so.

In the circumstances, it is appropriate that the plaintiff’s claim against the second named fefendant be struck out pursuant to Order 19 rule 28 of the Rules of the Superior Courts.”

(i) In paragraph 18 of the statement of claim, it is alleged, inter alia, that the defendants made representations and averments which, “are now known to be false and or were known to be false but were not corrected at the earliest opportunity, or at all, thereby seriously and fatally misleading this Honourable Court and the plaintiffs herein, whereby this Honourable Court was induced into error to make decisions it would not or might not have made had it not been kept out of the true facts.” The plaintiffs omit to state who allegedly knew the representations and averments were false, when they were allegedly known to be false, how they were allegedly false or when they ought to have been corrected. Moreover, the representations and averments were all true, as is apparent from the pleadings and affidavits in the Section 205 proceedings. There is demonstrably no basis for the assertion that any court hearing the Section 205 proceedings was misled or induced into error as the plaintiffs allege. All of the courts were aware of the true facts and accepted those facts.

(ii) In paragraph 19 of the statement of claim, it is alleged that it is a “fact” that, “at all material times, the first, third and fourth named defendants … were not in fact the owners or alternatively were not entitled either directly or indirectly to the entire or any beneficial interest in the said shares, as same had been sold, transferred, assigned or otherwise disposed of to third parties or otherwise dealt with in circumstances where the defendants were no longer the owners of the said shares or entitled to the beneficial interest therein directly or indirectly.” No basis is set out for this allegation and no particulars thereof have been provided. The owners allegedly entitled to the entire beneficial interest in Crindle are not identified. Nor does the statement of claim identify the person or persons to whom it is alleged the beneficial interest “had been sold, transferred, assigned or otherwise disposed of”. Despite the significance of the said allegations in the context of the case, the plaintiffs purport to make and despite the time which the plaintiffs have had to assemble the information necessary to plead and properly particularise that case, the plaintiffs are unable even to present a properly pleaded case, let alone prove the extraordinary allegations upon which it is based.

(iii) Throughout the statement of claim, the plaintiffs make a series of extremely serious allegations which are wholly unparticularised. For example, in paragraphs 27, 33 and 34, the plaintiffs make allegations of conspiracy on the part of the defendants which are entirely unsupported by detail or the necessary particulars. Similarly, in paragraph 31, the plaintiffs allege that, “false averments were made deliberately to pervert the course of justice”. Again, no particulars are provided. It is notable and, for the purposes of the present application, very significant that the plaintiffs’ claims are so utterly devoid of the particulars necessary to advance the case which they purport to make.

(iv) As in Adams v. Minister for Justice, the plaintiffs’ claims in these proceedings “are of the baldest kind, without any basis in law or fact”. Of course, it is not surprising that the plaintiffs’ pleadings are so fundamentally defective in so many respects and that the statement of claim does not disclose any reasonable cause of action: the plaintiffs do not have any reasonable cause of action and their allegations herein are demonstrably devoid of merit. The foregoing is exemplified by the wholly unparticularised nature of the plaintiffs’ multifarious allegations in relation to the ownership of Crindle, the fact that those allegations are fundamental to the plaintiffs’ entire case and the fact that those allegations are demonstrably false and without substance.

The proceedings have no reasonable prospects of success, are bound to fail and are an abuse of the process of the court.

“But, apart from Order 19, the court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp 34-37 and the Supreme Court Practice (1979) at para 18/19/10. The principles on which the court exercises this jurisdiction are well established. Basically, its jurisdiction exists to ensure that an abuse of the process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley LJ in Goodson v. Grierson at p 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the court to avoid injustice.”

“The function of the court is to consider one question only, was it proper to institute the proceedings? This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce. If the claim could never have succeeded, then the proceedings should be struck out. There is no room for considering what evidence should be accepted or how it should be interpreted. To do the latter is to enter on to some sort of hearing of the claim itself.”(at p.333.)

“[t]he object of [an order striking out proceedings to prevent an abuse of the process of the court from occurring] is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff.” (at p.334).

“Certainly, a plaintiff faced with an application to have the proceedings stayed or dismissed in these circumstances is likely to raise, in one form or another, legal issues in response. In a case where there is in effect an abuse of the process of the court, it is quite possible that some at least will be clearly spurious or have no relevance to the facts of the case. Any other legal issues must be clearly discernible as being without merit and readily capable of being resolved in favour of the defendant. It is for the judge hearing the application, within the scope of his discretion, to determine whether any points of law raised can be so clearly and readily resolved in favour of the defendant that to allow the action to proceed would constitute an abuse of the process of the court. Legal issues that are sufficiently substantial as to fall outside that bracket should be left to the trial of that action in those proceedings.”

“The court is entitled in the assessment of whether proceedings are vexatious to consider whether they have been brought without any reasonable ground. The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground.”

"(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;
(f) where the respondent persistently takes unsuccessful appeals from judicial decisions."

“… I am satisfied that this proposed cause of action is vexatious as it is one seeking first of all to bring one or more actions to determine an issue which has already been determined by a court of competent jurisdiction. Secondly it is one which it is obvious cannot succeed and it is one from which no reasonable person could reasonably expect to obtain relief. Furthermore, I am satisfied that this proposed action if brought would be brought for an improper purpose, namely the harassment and oppression of the parties to the earlier proceedings and not for the purpose of the assertion of legitimate rights.”

“… the fundamental point here is that he seeks to challenge previous judgments of this court and obtain declarations that they are wrong. Of this, the plaintiff said at the hearing of the appeal, ‘that is the whole basis of my case plus I am claiming damages.’ He appears to have considered that by adding a claim for damages he was entitled to reopen those issues in these proceedings. Of course, that is patently wrong. The judgments and decisions of which he complains are final and conclusive as regards the issues in those proceedings pursuant to Article 34.4.6 of the Constitution. Those issues cannot now give rise to a claim for damages and, in any event, a claim for damages as an additional form of relief cannot affect the res judicata nature of those decisions.

The learned High Court judge firstly had regard to Order 19, rule 28 [… Having quoted Order 19, rule 28, the court continued as follows:]

This is not the first occasion on which this plaintiff has sought, unsuccessfully, to litigate once again, issues which have been the subject of a final order and judgment of this court. On reading of the long statement of claim delivered by the plaintiff, which raises issues already and finally decided in proceedings between the plaintiff and other parties, it is manifest that the plaintiff’s action is both frivolous and vexatious and discloses no reasonable cause of action. Nothing which the plaintiff has said during the course of the hearing of this appeal (which essentially reflected the argumentative nature of the pleadings), disclosed any ground for taking any other view.

In my view, the learned High Court judge was perfectly entitled to come to the conclusion which he did, namely, that these proceedings constitute an abuse of the process of the court and he was entitled to dismiss them on that basis.”

“Exercising the inherent jurisdiction of the court, the learned High Court judge also struck out the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action and had no reasonable prospect of success. In respect of that conclusion he stated, ‘The position here is that these matters have already been litigated. There is no new matter and this is an effort to re-litigate the same matters and to effectively ask this court to review the decision of the Supreme Court or to ask another judge to embark on a hearing at a later stage. In my opinion, it is neither open nor would it be appropriate to do so in this case.’

He had before him the affidavit of Lawrence A. Farrell, Chief State Solicitor, filed on behalf of the defendants herein, to which there was no replying affidavit and had regard to the statement of claim of the plaintiff. The trial judge was perfectly entitled to make that finding on foot of that affidavit and the statement of claim. In those circumstances, he was correct in striking out the plaintiff’s claim on the grounds that it discloses no reasonable cause of action and has no reasonable prospect of success.”

“As regards the order restraining the plaintiff from issuing certain kinds of proceedings without leave of the court, the learned High Court judge relied on the dictum of Costello J. in McSorley v. O’Mahony, (Unreported, High Court, 6th November 1996). It is an abuse of the process of the court to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on a plaintiff. While every citizen has a right of access to the courts, it is in the public interest and in the interest of the proper use of public resources in the administration of justice that in exceptional circumstances this right be regulated by the courts. In my view, in the circumstances of this case, the learned High Court judge exercised his discretion properly in deciding to make such an order and I do not consider that any of the arguments made by the plaintiff in this appeal disclose a basis for impugning the exercise of that discretion.”

“The right of access to the courts is to be protected, but it is not an absolute automatic right in all and every case and circumstance. In the context of this case the words of Henchy J in Cahill v Sutton [1980] I.R.269 at 286 have a particular relevance:
‘It would be contrary to precedent, constitutional propriety and the common good for the High Court or this Court to proclaim itself an open house for the reception of such claims.’
In vindicating the constitutional rights of any person, it is of importance that the rights of the community as a whole or identifiable persons or officers or offices in it are not disregarded (e.g. by being open to harassment, oppression or scandalous or vexatious litigation). The common good and the respect of society and of the community for a justice system is not served or ensured by a disproportionate concern for the rights of the individual at the almost inevitable expense of a disregard for the rights of society by an over indulgence of every or any complaint of an individual. The courts, in respecting the rights of all those who seek access to the court, must also have some self-respect. Otherwise, there is the real possibility, nay probability, that the justice system will be abused and/or manipulated for unworthy purposes.”

“The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved - the anxiety, the delays, the costs, the public and painful nature of the process - there is, at least, the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.
That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the court been in possession of evidence not available at the hearing, is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.” (at p.481).

"There are two classes of cases, perhaps, which ought to be distinguished for this purpose. One is that of which the celebrated case of the Duchess of Kingston is an example, in which by the collusion of the parties the process of the courts has been abused, and the whole proceedings may be described as it was described in language used in that case as fabula non judicium. This, at all events, is not a case of that kind. The present case falls within the second class, namely, where it is not sought to treat as a nullity what has passed, but to undo it judicially upon judicial ground, treating it as in itself, and until judicially rescinded, valid and final."

"As a means of resolution of a civil contention, litigation is certainly preferable to personal violence. But it is not intrinsically a desirable activity, certainly not on the scale on which it raged in the Ampthill family in the early 1920s. The picture drawn by Charles Dickens in Bleak House of the long drawn out and ruinous lawsuit, Jarndyce v. Jarndyce and of poor Miss Flite, her wits overturned by the strain of litigation, was based on fact. The law itself is fully conscious of the evil of protracted litigation. Our forensic system, with its machinery of cross-examination of witnesses and forced disclosure of documents, is characterised by a ruthless investigation of truth. Nevertheless, the law recognises that the process cannot go on indefinitely. There is a fundamental principle of English law (going back to Coke's Commentary on Littleton) generally expressed by a Latin maxim which can be translated: it is in the interest of society that there should be some end to litigation'.
…
And once the final appellate court has pronounced its judgment, the parties and those who claim through them are concluded; and, if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it. A line can thus be drawn closing the account between the contestants. Important though the issues may be, how extensive whatsoever the evidence, whatever the eagerness for further fray, society says: we have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end, you must accept what has been decided. Enough is enough.” (The second paragraph in the above passages from the speech of Lord Simon was also endorsed by the Supreme Court in L.P. v. M.P.

"To impeach a judgment on the ground of fraud, it must be proved that the court was deceived into giving the impugned judgment by means of a false case known to be false, or not believed to be true, or made recklessly without any knowledge on the subject. No doubt, suppression of the truth may sometimes amount to suggestion of the false: The Alfred Nobel [1918] P 293 But, short of this, lack of frankness or an ulterior or oblique or indirect motive is insufficient.

Moreover Janesco v. Beard [1930] A.C. 298 a decision of your Lordships' House, confirmed that, to impugn a judgment on the ground of fraud, the fraud must be alleged with particularity and proved distinctly. A person is not permitted merely to allege fraud in the hope of discovering it as the case develops.

You cannot go to your adversary and say, ‘you obtained the judgment by fraud, and I will have a rehearing of the whole case until that fraud is established'.
…
The impugner of a judgment as obtained by fraud must adduce evidence of facts discovered since the judgment which show a reasonable probability (which I take to mean a prima facie case) of such fraud as would invalidate the judgment, before he can call on the person whose judgment he seeks to nullify to make any sort of disclosure."

"What is fraud for this purpose? Learned counsel for John Russell, without venturing on a definition, suggested that some kind of equitable fraud, or lack of frankness, was all that is meant, but I cannot accept so anaemic an ingredient. In relation to judgments, and this case is surely a fortiori or at least analagous, it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and the declaration must be obtained by it. Authorities as to judgments make clear that anyone wishing to attack a judgment on the grounds of fraud must make his allegation with full particularity, must, when he states it, be prepared to prove what he alleges and ultimately must strictly prove it."(ibid).

“[In St. Albans Investment Co. v. London Insurance and Provincial Insurance Co. Ltd.] I examined the documents which it was alleged had been fraudulently omitted from the affidavit of discovery made on behalf of the defendant in that case, and concluded that there was no evidence to support the proposition that the omitted documents would have any impact on the decision which it was sought to impeach. I am equally clear that in the present case, not only the particular document referred to in the statement of claim but also the other documents exhibited in the grounding affidavits already referred to, would not have advanced the case made by Tassan Din. I do not accept the far reaching proposition that a document which was not discovered might, for some unexplained reason, have put the other party on a train of inquiry or investigation which might have resulted in the production of vital evidence, and that such a possibility would be a ground for upsetting the order of the Supreme Court. If the omitted documents had that potential, I have no doubt that such inquiries would have been made long since, with the results thereof made available to the court to demonstrate, as I believe would be necessary, that the order of the Supreme Court was obtained as a result of the alleged fraud.”

“The jurisdiction of a court at common law to set aside or amend a final order, was considered by this court in Belville Holdings Ltd. v The Revenue Commissioners [1994] I.L.R.M. 29. The substance and effect of the judgment of Finlay CJ in that case was conveniently and succinctly summarised by Hamilton CJ in In re Greendale Developments Ltd. (No 3) [2000] 2 I.R. 514 at 527. as follows:-
‘… it set out in detail the common law principle concerning [this] question holding that where a final order has been made and perfected it can only be interfered with:-
(1) in special or unusual circumstances, or

(2) where there has been an accidental slip in the judgment as drawn up, or

(3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.’
Later in his judgment at p. 529, Hamilton CJ went on to state:-
“Public policy requires a definite and decisive end to litigation. In spite of the importance of such a principle, it was accepted at common law that an action may be brought to set aside a judgment or order made by the Court which had been obtained by fraud.”

“There is no suggestion in the above passage from the judgment of Barrington J. or the extracts from the judgments therein referred to that the judgment so obtained could be set aside other than in separate proceedings. They are not authority for the proposition that the Court can set aside its own decision.”

(1) Damages for negligence

(2) Damages for unlawful interference with the economic interests of the plaintiffs and each of them.

(3) Damages for breach of duty

(4) Damages for misrepresentation and/or negligent misstatements

(5) Damages for breach of contract.

(6) A declaration that the receiver, the first defendant, has purported to sell the property known as Bula Mine as Nevinstown, Navan, County Meath, in breach of duty.

(7) A declaration that the first defendant was and is prohibited from acting as receiver and manager.

(8) An injunction restraining the first named defendant from dealing with the proceeds of the purported sale pending the determination of these proceedings.

(9) Damages for breach of contract.

(10) Damages for misrepresentation and/or negligent misstatements.

(11) An order setting aside the contract dated 9th May, 2001, made between the receiver and Tara Mines Limited.

(12) An order setting aside any conveyance between the receiver and Tara Mines Limited pursuant to any purported completion of the contract dated 9th May, 2001.

(13) An order setting aside any conveyance pursuant to any purported completion of the contract.

(14) A declaration that Tara Mines has no good title to the property.

(15) An injunction restraining Tara Mines from exercising and/or asserting any rights as purchaser under the purported conveyance pending the determination of these proceedings.

(16) An injunction directing that Tara Mines refrain from entering onto, into or under, or extracting minerals from the property.
As against Outokumpu Oy, Northern Bank Finance Corporation Limited (NBFC) and Ulster Investment Bank Limited (UIB):
(17) Damages for breach of duty and negligence.

(18) Damages for unlawful interference with and obstruction of the course of justice.

(19) A declaration that Navan had an interest in the security, pursuant to which the receiver purported to sell the property to Tara Mines Limited.

(20) A declaration that Navan was an intended beneficiary pursuant to the contract between the receiver and Tara, dated 9th May, 2001.

(21) An order directing that all necessary accounts and enquiries be taken.”

“A declaration that the judgments and orders of the Supreme Court and High Court in the proceedings entitled: The High Court 1986/6624P, Bula Limited (In Receivership), Bula Holdings, Thomas C. Roche, Thomas J. Roche, Richard Wood and Michael Wymes v. Laurence Crowley, NBFC, UIB, AIIB, McKay and Schnellman Limited having been obtained in circumstances of concealment of information from the court and/or fraud ought to be set aside.”

“(a) Damages for wrongful interference with and obstruction of the just and proper prosecution of the proceedings described in the statement of claim herein as the Bank proceedings in the section 316 (a) application;

(b) a declaration that all the defendants (excepting Outokumpu Oy) failed to make proper disclosure to the courts of facts and matters necessary to the justice and integrity of the hearing of the proceedings described in the statement of claim herein as the bank proceedings in the section 316(a) application, thereby causing or bringing about wrongful interference and obstruction of the proper prosecution of the aforesaid proceedings.”

“It is essential, when pleading fraud, to do so with particularity.

…
The parties are, of course, aware of the necessity of pleading fraud with particularity. The court has already been addressed on the implication of the first allegation of fraud as against the receiver and on submissions that there are no unchanged circumstances, nor indeed substance, in relation to such an allegation being imputed to the receiver at this, or at any stage.

No attempt is made in the extensive allegations made of wrongdoing, concerted effort etc., to allege or particularise fraud in the body of the statement of claim.

The plaintiff had claimed against the receiver that the receiver was prejudiced in the conduct of his duties by a conflict of interest deriving from Navan’s involvement in the security held by the banks. It was alleged in paragraph 39.09 of the statement of claim, that the receiver had wrongfully and/or in breach of duty and/or negligently and/or in breach of contract, concealed the fact that he, his advisors and Navan Mining, had conflicts of interest in respect of the sale of the assets of Bula and, at para. 39.12 that because of the failure to declare the interest and involvement of Navan Mining, the High Court and the Supreme Court were misled and the said proceedings were conducted and decided upon a false premise and liable to be set aside.

The allegations were framed in terms which were not particularised and which were vague and hint at the previous orders of the Superior Courts being obtained by fraud.

The court must weight unsubstantiated claims against the clear and detailed denials averred to by Mr. Sowman and Mr. Tully on behalf of the banks and on behalf of Tara and Outokumpu.
It is clear that there are very limited grounds upon which a decision, a final decision of the Superior Courts can be set aside, apart from appeal. Keane J., as he then was, in Kenny v. T.C.D.(Unreported, Supreme Court, 20th June 2003), referred to L.P. v. L.P. [2002] 1 IR 219 where he summed up the effect of the relevant judgments in relation to which a final order may be impugned. Apart from the slip rule, the only ground upon which a final and conclusive decision of the High Court could be set aside is in separate proceedings on the grounds of fraud.”

“Authorities as to judgments make clear that anyone wishing to attack a judgment on the grounds of fraud must make his allegation with full particularity, must, when he states it, to be prepared to prove what he alleges and ultimately must strictly prove it.”

“The decision of the court on the 316A proceedings is the relevant declaration. There is no indication either in the extensive pleadings nor in Mr. Wymes’ affidavits as to how the alleged concealment of information and/or fraud led to the declaration granted by this court in the s. 316A proceedings.

If it is now submitted that the conflict of interest/Navan involvement was not relevant to the s. 316A proceedings, as originally claimed, the question arises whether the fraud allegation has any relevance to other proceedings.

What is being sought without proper factual foundation is the setting aside of the decision of the High Court and Supreme Court in relation to the consent for the sale to Tara, which consent is a declaration by the court that the receiver is entitled to sell or, at the very least, that the conditions allowing the sale, pursuant to s. 316A, have been complied with by the receiver, and the decision of the High Court and the Supreme Court in the banks litigation.

It seems to this court that the first essential stage is to make the allegation with full particularity. This is not at all apparent from the pleadings. Moreover, there is no averment in Mr. Wymes’ affidavit (which are not pleadings) which further the factual basis. It seems indeed, unfortunate that the two allegations of fraud seems to have been added as an afterthought in para. 46 of the prayer to the statement of claim. One would have expected details of the nature of interest in the security and how this gave rise to a conflict of interest. It would necessarily have to have been shown how the receiver acted fraudulently and that the impugned judgments were procured by such fraud. In the absence of such particulars the proceedings cannot proceed.

In a motion such as the present motion it is necessary, once a case to strike out had been made out by the applicants/defendants, to give some evidence that the claim is stateable.

12.9 The fourth named defendant, Outokumpu Oy, who subsequently took over Tara Mines Ltd., could have had no involvement. Its inclusion in the fraud claim may have been oversight. However, it is a serious abuse to plead fraud where it was not intended. There are, moreover, no particulars given in relation to that defendant.

The court finds that the evidence referred to in Mr. Wymes’ affidavits relating to a conflict of interest/Navan involvement is, in any event, not sufficient to ground any claim for fraud.

The court is of the view that conflict of interest was relevant to the section 316A proceedings. Evidence on affidavit in relation thereto was largely conjecture and supposition. The court had heard that evidence and the submissions made in relation thereto and made a determination on the basis of all but the hearsay evidence.

The purpose of s. 316A proceedings is to enable title to be conveyed to a purchaser. Mr. Wymes’ affidavit in the 316A proceedings raised issues of impropriety, conflict of interest, collusion, depressed price which were relevant to price. He withdrew evidence that had been deemed inadmissible, even if he did attempt to reserve unspecified rights. The plaintiffs in these proceedings, notice parties to the s. 316A proceedings, must be deemed to have withdrawn their opposition to the extent of their withdrawal of evidence to support that opposition and cannot now attempt to relitigate and have the s. 316A decision set aside.

12.10 The concert parties referred to in 17.05 of Mr. Wymes’ affidavit are Navan, Arcon and Imet. Tara is not included. It is difficult to understand why, in those circumstances, Tara is a defendant. The arrangement alleged between the “concert parties” was clearly denied by Mr. Hayes on behalf of the banks. Mr. Tully, the Company Secretary of Tara, emphatically denied that Navan had any involvement in the purchase of Bula. He denied that there had been any misleading of the court.
The court prefers their clear evidence as against the supposition of the respondents.

It is not clear what is meant by allegations are made in relation to self-dealing (para. 41.01 – 4 of the statement of claim) beyond the reference to “arrangements between the concert parties”.

12.11 In an application such as this, there is a distinction to be made between: (a) pleadings with particulars with dates and items if necessary; (b) reasonable prospect as evidenced by the replying affidavits, and (c) distinct proof.

Many of the allegations are inappropriately pleaded; others are pleaded without particulars and the remainder lack any reasonable prospect. (see Ampthill, Tassan Din and L.P. v. M.P.).

It is accepted that distinct proof is, of course, a matter for the trial. It is also recognised that pleadings may be amended. The court is mindful that full pleadings, including the defence of the parties, require reply to particulars of defence and/or discovery.

The court finds that there is a requirement that particulars with dates and items is necessary as a factual basis for the claims made. There is not any new evidence to give a reasonable prospect to what appears to be mere allegations which date back to the bank case and the 316A application. There is a bare identification of Navan as the alleged principal in the arrangement. However, it is unclear what exactly is claimed in relation to Navan’s interest in the security of the banks over the assets of Bula which would appear to be the central block of the plaintiff’s claim.

12.12 The reference to “at all material times” at para. 14.06 of Mr. Wymes’ affidavit, is not particularised and appears vague. It would appear to be as early as April, 1997 (para 50). It is unclear if the material times ended whether with the death of Conor Crowley in 1999, or extended to the scheme of arrangement in July 2000 (14.04 of the same affidavit). Given the comprehensive nature of the bank proceedings which ended in 1995 (15.06-70) of Mr. Wymes affidavit any so-called arrangements should have been known to the plaintiff’s prior to that date. In any event, during the bank proceedings, the court was informed of the agreement dated 9th April, 1999, on that day (see para. 16.01 of Mr. Wymes’ affidavit). Certainly, by the last quarter of 2000, when Tara put in a sealed bid (para. 18.01 of Mr. Wymes’ affidavit), the arrangement/conspiracy must have existed to have had any effect on whatever price was then offered. The banks and Tara have denied any arrangement and, as already stated, the Bula parties’ allegations are unsubstantiated, both in relation to detail and to time.

12.13 Emphasis was made on the absence of discovery. Discovery was refused in relation to this issue by Barr J. and the High Court in the s. 316A proceedings refused an adjournment for the purpose of an application for discovery. There is no indication whether, and to what extent the latter or, indeed any future application, differed from the application which was refused. The court, at this stage, has to weigh up unparticularised and vague supposition on the one side, with the averments of Mr. Hayes and Mr. Tully. The dates referred to in their affidavits would seem to be within the “material times” referred to by Mr. Wymes in para. 14.06.

12.14 The affidavit of Mr. Wymes of 9th December, 2004, at para. 194 headed “Factual Basis”, gives as sources facts within his own knowledge and belief, facts in the public domain and facts to be disclosed on discovery. He refers to a number of other sources. The court has no way of discerning which facts are in his own knowledge or emanate from the public domain and/or the discovery already granted (or discovery contemplated in the future). There is no indication whether any of the assertions, or which of them, emanate from any of the other sources referred to. In relation to Mr. Frizelle, the source would seem to refer to a telephone conversation the text of which is exhibited. This goes no further than to say that Mr. Frizelle could try to get some detail in relation to the alleged conflict of interest. The court must distinguish a ground of claim and an indication on affidavit of another’s attempt to get evidence to substantiate that claim. The matters referred to have already been before the court and have not advanced in character. They formed a specific ground for an appeal as it was. It is entirely inconsistent and irreconcilable to approbate and reprobate.

It is well settled that the purpose of the procedural remedy of discovery is to aid a party in the process of litigation. It is not to be invoked so as to enable a plaintiff to plead a cause of action which that plaintiff is not otherwise in a position to plead. Details of complaint must be pleaded with some particularity. A plaintiff cannot launch an action with a view to obtain by discovery as grounds for such an action or with a view to amend proceedings: Gavin v. Graham-Twomey. [1994] 2 ILRM 315 at 320.

Paragraphs 226 to 249 of Mr. Wymes’ replying affidavit were already contained in his affidavit sworn on 12th February 2003 before the Supreme Court. Paragraph 30 of that affidavit averred, “I say and am advised that the above evidence is relevant to the issue of conflict of interest and discovery to the within application”.

The motion for discovery in January 2001, which was refused by Barr J. in the bank proceedings, was made by the present plaintiffs where Mr. Wymes had no evidence of Navan’s involvement. The identification, without name, of Navan does not add any further material fact to the claims made. Mr. Wymes’s second affidavit sworn on the 14th January 2005 referred to the absence of an affidavit from the receiver regarding the issue of discovery and to the conflict of interest. This is not relevant to the requirements of stating the plaintiff’s claim with the appropriate particularity.

12.15 There are a number of further comments in relation to the affidavit of 9th December, 2004, and the supplemental affidavit sworn 14th January, 2005, which the court should make at this juncture.

The first is that it appears clear that the plaintiffs’ distinction between price and valuation is critical to the argument that they are entitled to pursue the present claim. This is a matter to which the court had dealt with extensively in the s. 316 decision. The issue for the receiver was price – objectively ascertainable price – and not subjective evaluation. The statutory provision and the case law was referred to in that decision.

The second matter relates to the hearsay evidence of Mr. Calver and Mr. Frizelle. There is no affidavit from either, nor, indeed, is there an affidavit from the deponent’s son, Michael T. Wymes in relation to his alleged meeting with Mr. Calver in December 2000, or January 2001. It seems curious in view of the extensive affidavit of December 2004, and that of 19th January, 2005, that these matters were not brought to sharper and more defined focus.

Thirdly, even allowing for the ever-increasing complexity of assertions and the extent to which they have been dealt with in previous litigation, it is unclear to what purpose the plaintiffs reiterate them in greater detail. Moreover, the assertions prior to the contract of sale of 9th May, 2001, were clearly known before the s. 316A application. Mr. Wymes says they related to discussions with him, that he was informed by Mr. Calver and Mr. Frizelle that Mr. Calver had told him he had spoken to an executive of Outokumpu and that both Mr. Calver and Mr. Frizelle informed him of the contemplated non-competitive “link ups” among other matters. The three assertions relating to post-contract on 31st May, June and August of 2001, seemingly confirmed what he already knew prior to the contract.
Fourthly, the court is uncertain what emphasis Mr. Wymes is placing on Navan’s major financial problems, de-listing and re-listing. It does not appear to have any relevance.

Fifthly, if the position of Navan, Inmet and Arcon were as mentioned, it was unclear how this affected the receiver’s rights to sell. The reference to their position is vague and lacks precision of pleading. It is unhelpful for Mr. Wymes to say that he could read more into what is vague and hearsay and that what was important was what was intended rather than what had actually happened is unhelpful.

In the interchange with counsel on behalf of the plaintiffs, it was clear that the plaintiffs’ case was that not alone did the receiver not have any independence, but that the banks, having appointed him, had their hands tied with regard to any discussions they might wish to have with regard to the securities held by them. However, the plaintiff could not go this far other than by reference to possible deals involving a number of parties. Indeed, to the limited extent to which such reference was made, there appears to be no prima facie case grounding conspiracy, concerted arrangements and certainly not fraud.

Indeed, the import of the plaintiffs’ case appears to be that the assertions were, or could have been intended, rather than were contracted to be done or, indeed, subsequently happened is purely speculative. The unparticularised pleadings refer to hearsay, speculation and possible outcomes of the sale of a valuable unexploited ore body adjoining Tara in relation to which other mining interests might possibly becoming involved.

Meanwhile, for a period of upwards of nineteen years, the plaintiffs have been involved in largely unsuccessful and costly litigation which has prevented the debenture holders from realising their security.

12.16 The court is conscious of new claims being smothered by reason of old claims having been rejected. This is all the more likely to happen where there have been numerous unsuccessful attempts at related litigation as has been the case here.

The court is, however, satisfied that even though not appropriately particularised, all of the plaintiffs’ claims have already been dealt with by the courts and are res judicata.

What remains are indeed vague, unparticularised allegations without foundation. It is an abuse of process to say that the appropriate foundation and particulars should await discovery.”

"In the instant proceedings, the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out 'to effect an object not within the scope of the process'; Grainger v Hill (1838) 4 Bing (N.C.) 212 per Tindal CJ at 221. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought; see In re Majory.[1955]Ch 600 at 623.”

“If an action is not brought bona fide for the purpose of obtaining the relief but for some ulterior or collateral purpose, it may be struck out as an abuse of the process of the court. The time of the court should not be wasted on such matters, and other litigants should not have to wait till they are disposed of. It may be that the trial judge will conclude that this is the case here; in which case he can dismiss the action then. But for the court to strike it out on this basis at this stage it must be clear that this is the case.”

“It follows that in considering applications such as that which has been made by the sixth defendant herein, the courts may (and perhaps should) take into account the interests of bona fide litigants who, regrettably must often compete for comparatively scarce court time in order to have matters which are often of considerable importance litigated to a conclusion. It is, in my judgment, desirable and consistent with proper public policy that the interests of such bona fide litigants should have precedence over the rights of parties who wish to litigate points of law which sometimes (as in the instant case) are wholly or largely technical in nature and often flimsy in substance for purposes unconnected with public benefit and wholly concerned with private gain.

In the instant case, I am satisfied on the evidence that the proceedings herein have been commenced by the plaintiff in a cynical, calculated and unscrupulous fashion for the sole purpose of seeking a commercial advantage over its competitor, the sixth defendant. I am further satisfied that the purpose for which these proceedings have been instituted has not been to redress a wrong or a grievance, to right an injustice, to ensure compliance by the sixth defendant and by other potential developers with provisions of national or international legislation, to ensure the proper and lawful planning and development of any particular area or for any other commendable, environmental or civic spirited reason. I am quite satisfied that the sole purpose of the proceedings is to inflict damage upon its competitor, the sixth defendant and I am satisfied that that is an improper purpose for the commencement of proceedings and an improper use of the process of the courts.”

(i) The defendants say that their view that the plaintiffs do not have any reasonable cause of action is strongly reinforced, and the extent to which the proceedings involve an abuse of the process of the court is brought into sharp focus, when the allegations in the statement of claim are considered in the light of all of the sworn evidence before the court including, in particular, each of the affidavits sworn by and on behalf of the defendants.

(ii) In Riordan v. Ireland (No. 5), Ó Caoimh J. set out a number of factors which he considered tended to show that a proceeding is vexatious and an abuse of process. I quoted the relevant section of Ó Caoimh J’s judgment earlier at paragraph 95 above. The defendants say it is clear from the evidence before the court that each of those factors is applicable to the plaintiffs and their claims herein against the defendants.

(iii) The defendants say it is manifest that, in these proceedings, the plaintiffs are attempting to litigate matters which have already been determined by courts of competent jurisdiction and that the proceedings are, therefore, a serious abuse of process and contrary to the requirements of the public interest. They submit that four of the plaintiffs herein similarly sought to abuse the process of the court in Bula v. Crowley and, on that basis, their claims in that case were dismissed by the court. It is contended that the parallels between that case and the proceedings herein are striking in a number of respects. The defendants point to what they characterise as “the failed tactics employed in that case of making allegations relating to the concealment of information and/or fraud, failures to make proper disclosure of facts to the courts, misleading the courts and attempting to have final orders of the High Court and Supreme Court set aside on the foregoing grounds”. They further submit that it is also notable and revealing that, as in this case, the plaintiffs’ allegations in Bula v. Crowley were, as the court found, “wholly unparticularised” and based on “conjecture and supposition”.

(iv) The defendants say that it is clear from the authorities that “anyone wishing to attack a judgment on the grounds of fraud must make his allegation with full particularity, must when he states it be prepared to prove what he alleges and ultimately must strictly prove it”. In particular, it is necessary to plead and prove that there was “conscious and deliberate dishonesty” and the relief(s) that were obtained as a result thereof. They contend that as in Bula v. Crowley, the plaintiffs have wholly failed to plead their case with the necessary degree of particularity. Echoing Murphy J. in Bula v. Crowley, they submit that many of the allegations are inappropriately pleaded; others are pleaded without particulars and the remainder lack any reasonable prospect.
(v) The defendants say that it is a striking and, for present purposes, very significant feature of the claims which the plaintiffs seek to make herein that, despite the time which the plaintiffs have had to assemble information to support their allegations (which includes a period of over nine months since the proceedings herein were issued), the motion which was issued herein on behalf of the defendants on 11th July 2007, and the length of the affidavits sworn by Mr. Wymes in response to that motion, the plaintiffs have been unable to point to any evidence in support of their allegations and those allegations remain vague and wholly unparticularised. The defendants submit that those allegations must be considered in the light of the specific and emphatic sworn evidence by and on behalf of the defendants including, in particular, the two affidavits sworn by Mr. Roche. In this context, they also highlight the following paragraph from the fourth affidavit of Isabel Foley:
“At paragraph 52 [of his second affidavit herein], Mr. Wymes states that he is not in a position to confirm conclusively where the ownership of Crindle rested in 1997. He later says (at paragraph 60) that what transpired at the meetings in the offices of Arthur Cox on 15th January 2001, was ‘highly evidential, if not confirmatory’, that Crindle was not in the sole beneficial ownership of Mr. Roche Junior. Apart altogether from the equivocal nature of this statement, which is based solely on unwarranted inference and supposition, it does not deal at all with the key point as to whether the beneficial ownership of Crindle was misrepresented to the court at any stage. This is to be weighed against the unequivocal sworn statements, by myself and Mr. Roche, that the ownership of Crindle was as stated to the court at all material times and, in particular, in 1993, 1994, 1997 and 1998, that prior to 13th January 1995, Crindle was beneficially owned by Thomas J. Roche, his father and Conor Holdings Limited, and that since 13th January 1995, has been in the sole beneficial ownership of Thomas J. Roche, and the sworn statement on affidavit of Mr. Hegarty that he never made a statement to Mr. Wymes that Crindle was not in the beneficial ownership of Roche or that there was any non-Roche ownership of Crindle.”
The defendants say that, as in Bula and Crowley, the court here “has to weigh up unparticularised and vague supposition on the one side with the averments of [the defendants]”. They submit that, as in that case, the court should prefer “the clear evidence” of Mr. Roche to the “supposition” and “conjecture” of Mr. Wymes. They also seek to remind the court that in the Tara Proceedings, this court (Lynch J.) made the following finding in respect of Mr. Wymes:
“Having listened to and observed Mr. Wymes in the witness box for 146 days, and throughout the trial, I have come to the conclusion that he is an unreliable witness.”
(vi) The defendants say that it is clear from the evidence before the court that these proceedings were commenced for an improper purpose, namely, to avoid the consequences of the orders for costs which were made in August 2002. The court was reminded of the evidence of Ms. Foley at paragraph 59 of her affidavit of the 11th of July 2007, wherein she states:
“It is noted that Mr. Ryan states that the proceedings were ‘in contemplation’ and apparently the subject of advices ‘long before’ the issue and service of the Certificate of Taxation. It is difficult to see if that were the case why the proceedings were not commenced ‘long before’ the issue and service of the Certificate of Taxation and why the plaintiffs chose to wait more than six years from the date on which it is alleged they obtained information concerning the alleged non-Roche beneficial ownership of Crindle in January 2001. Contrary to what is suggested by Mr. Ryan, I believe the correspondence which I have referred to earlier, and indeed the focus of the reliefs sought in these proceedings, clearly show that the object of the proceedings is an attempt to avoid the obligation to discharge the cost[s] ordered by Murphy J. on 2nd August 2002, in respect of the orders made in the 1993 section 205 proceedings in respect of which costs were reserved in 1993 and 1994. Furthermore, if the proceedings were in contemplation ‘long before’ the Certificate of Taxation, it is difficult to see why those issues were not raised at the time of the application before Murphy J. in July/August 2002, at the time of the taxation in December 2006/January 2007 or indeed at any time in the intervening period.”
In this context, the defendants also highlight the reliefs sought in paragraphs 7 and 8 of the prayer for relief in the statement of claim which, they contend, provide a true indication of the motivation of the plaintiffs in these proceedings. They submit that for these reasons also, the proceedings constitute a clear and serious abuse of the process of the court.

“The court may, at any stage of the proceedings, order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.”

“…as regards the order striking out the statement of claim, the learned High Court judge correctly stated that ‘The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such matters when they have nothing to do with any dispute between the parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed.’

“The authority for that statement is Christie v Christie.(1873) Ch 499. However, any unnecessary matter containing any imputation such as ... may be struck out as scandalous." (see Murray v Epsom Local Board (1897) I Ch 35). In the pleadings here, there are allegations which are totally unnecessary to any reasonably balanced or strongly held views of a plaintiff as against a defendant. The imputations of character made here would leave a person open to litigation in defamation had they not been accorded the protection of privilege of the court. The pleadings here, it seems to me, are of the character. I need not go through them but merely highlight further what I would regard as contemptuous language and scandalous allegations. It is perfectly in order for a litigant to say that a defendant has acted in a particular way. However, what has been imputed here is not only over the top, but is being deliberately used for the purpose of trying to advance some view which does not accord with fairness, common sense, justice, constitutional right or with any modicum of decency.”

“(1) In all cases alleging a wrong within the meaning of the Civil Liability Acts, 1961 and 1964, particulars of such wrong, any personal injuries suffered and any items of special damage shall be set out in the statement of claim or counterclaim and particulars of any contributory negligence shall be set out in the defence.

(2) In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.”

5.38 The long established practice of the courts has been to require allegations of fraud to be pleaded with particularity. Rule 5(2) now provides that, in all cases alleging misrepresentation, fraud, breach of trust, wilful or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) must be set out in the pleadings. The rationale of this requirement was explained by Barrington J. in Hanly v. Finnerty in relation to a plea of undue influence as follows:
‘Undue influence is a plea similar to fraud and it appears to me that it would be quite unfair to require a party against whom a plea of undue influence is made to go into court without any inkling of the allegations of fact on which the plea of undue influence rests. Because of the seriousness of the plea counsel will not lightly put his name to a pleading containing a plea of undue influence so that his solicitor will usually have in his possession some allegations of fact which justify the raising of the plea or at least excuse the plea from being irresponsible.’
5.39 Thus, a party is not only required to expressly plead fraud or misrepresentation etc., but he must also give full particulars of its nature and how it is alleged to have occurred. However, it should be noted that, given the difficulty of proving fraudulent intention, malice or any other condition of the mind (which is often a matter of inference to be drawn from the proven facts), it suffices to allege this as a fact without setting out the circumstances from which the same is to be inferred.”

“The Statement of Claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrance v. Lord Norreys (1890) 15 App Cas 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v. Garrett (1878) 7 Ch D 473 at 489). ‘General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice’…

Particulars. Full particulars of any misrepresentation relied on must be given in the pleading (R.S.C., Ord. 18, r. 12 (1) (a)). The Statement of Claim must show the nature and extent of each alleged misrepresentation (Newport Dry Dock & Engineering Co. v. Paynter (1886) 34 Ch D 88) and it must contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant document (Seligmann v. Young [1884] W.N. 93). Where the plaintiff alleged that the entries made by the defendant in certain books were false, he was ordered in the first place to give particulars of entries which he alleged to be false, and subsequently to give further particulars showing in what respects each of these entries was false (Newport Dry Dock & Engineering Co. v. Paynter, ante); “all the accounts rendered to the plaintiff are untrue” did not comply with an order for further particulars of fraud (Harbord v. Monk (1878) 38 L.T. 411).

Moreover, the necessary particulars of the fraudulent intention relied on must also be contained in the pleading (R.S.C., Ord. 18, r. 12 (1) (b)), and accordingly, the pleadings must set out the facts, matters and circumstances relied on to show that the party charged had or was activated by a fraudulent intention.”

“5.74 The statement of claim must set out the plaintiff’s claim and the relief sought with clarity and particularity in accordance with the principles of pleading set out above. Thus, it should state specifically the relief which the plaintiff claims, either simply or in the alternative. It is important to note that a cause of action must be pleaded in the main body of the statement of claim and it will not be regarded as having been pleaded if it is merely mentioned in the prayer for relief at the end.

5.75 If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they should be stated, so far as possible, separately and distinctly. It should be noted that there is nothing to prevent the plaintiff setting up two or more separate claims and claiming relief in respect thereto in the alternative.”

THE RESPONDENTS’ (i.e. THE PLAINTIFFS’) SUBMISSIONS

160. Although structured differently to the defendants’ submissions, the plaintiffs’ submissions are also presented under specific major headings, and so I will adopt the same procedure in reviewing these as for the defendants’ submissions
161. The first major heading:

[This is presumed to refer to Mr Roches’s affidavits],
(iii) The party or parties swearing the affidavits wherein the misrepresentations complained of, and said to have been relied upon, were set out.

"It is axiomatic that the function of pleadings is to define the issues between the parties so that both the plaintiff and the defendant know what is the other side's case and thus everyone, counsel, judge and jury are able to focus on the real nature of the dispute. Although to some it may seem a startling observation we can see no reason why libel litigation should be immune from ordinary pleading rules."

"The ordinary use and purpose of particulars is to define the issues between parties to any action or proceeding and thereby to prevent either party from being taken by surprise and incidentally to limit as much as possible the length and expense of trials. Each party is entitled to know precisely what case the other party is going to make at the trial and be entitled to prepare accordingly."

"The object of particulars is to enable the party asking for them to know what case he has to meet at the trial and so to save unnecessary expense, and avoid allowing parties to be taken by surprise."

Reference relief number 1‘The Plaintiffs’ Statement of Claim discloses no reasonable cause of action and/or is shown by the pleadings to be frivolous and vexatious’

“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel they shall be signed by him; and if not so settled they shall be signed by the solicitor, or by the party if he sues or defends in person.”

‘In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.’

“Wherever the contents of any document are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material.”

“Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.”

“The law
‘3.1 The jurisdiction of this court to dismiss proceedings which are bound to fail has been clear since the decision of Costello J. in Barry v. Buckley [1981] I.R. 306. The relevant principles are well settled. It is a jurisdiction to be exercised sparingly and the onus rests upon the defendant to satisfy the court that there is no prospect of success. In addition the court should not judge the matter on a narrow or technical basis referable to the pleadings. It is well settled that, even if the proceedings as currently drafted might have no chance of success, the proceedings ought not be dismissed if, by an appropriate amendment, the proceedings could be recast in a fashion which would give rise to a prospect of success. (See the judgments of McCarthy J. in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425 and Fennelly J. in Lawlor v. Ross (Unreported, Supreme Court, Fennelly J., 22nd November, 2001 at p. 10).

3.2 The principal basis advanced on behalf of ACC for suggesting that these proceedings are bound to fail is that the same issues have already been determined. In that context, it is important to identify the scope of the doctrine of res judicata. It is well settled that in order for a plea of res judicata to succeed, the judgment upon which it is founded must be a final and conclusive judgment on the merits. There is no doubt but that the judgment of Murphy J. is a final judgment (at least since any prospect of an appeal from that judgment has disappeared by virtue of the order of the Supreme Court made in October 2006). There is, however, an issue between the parties as to whether it can properly be said that the judgment of Murphy J. in the previous proceedings is a judgment on the merits. In that context, it is clear that the dismissal of proceedings for want of prosecution (see for example People v. Evans [1969] 2 Ch. 255) or by virtue of prematurity (see Barber v. McQuaig [1900] 31 OR 593) do not give rise to a bar to future proceedings.

3.3 In that context, there is an issue as to whether a dismissal on the basis that proceedings are frivolous and vexatious or are an abuse of process amounts to a judgment on the merits. Counsel for Mr. Moffitt places reliance on the decision of this court in Dalton v. Flynn (Unreported, High Court, Laffoy J., 20th May, 2004). One of the issues which arose in that case was as to whether a counterclaim brought in previous proceedings amounted to a bar to the prosecution of the case under consideration. To that counterclaim an objection was raised in the Reply and Defence to Counterclaim to the effect that the matters raised were ‘unnecessary, scandalous and designed to embarrass and furthermore were frivolous and vexatious’. Following an application in that regard, Finnegan P. ordered the counterclaim to be struck out. It is not clear from the judgment of Laffoy J. as to the precise basis upon which the counterclaim was struck out. Laffoy J. concluded, at p. 12, that the counterclaim in the previous proceedings was not adjudicated on the merits and that, therefore, it could not be a bar to the prosecution of the proceedings with which she was concerned.

3.4 It is suggested, therefore, that Dalton v. Flynn is authority for the proposition that a dismissal on the basis that an action is bound to fail does not amount to a dismissal on the merits such as would give rise to a bar to the same issue being raised again. There may well be cases where the fact that proceedings are dismissed as being frivolous or vexatious may not give rise to a bar to further proceedings. However, it seems to me that where proceedings are dismissed as being bound to fail following on from a hearing in which the court considered the merits of the case for the purposes of determining whether the case had any chance of success, then it follows that fresh proceedings on the same basis are barred. In order to determine that proceedings are bound to fail, the court must enter into a consideration of the merits. Indeed, it does so on the basis of allowing the benefit of the doubt concerning any factual or complex legal issues to be determined in favour of the plaintiff. The proceedings will only be dismissed, under Barry v. Buckley, where the court is satisfied that there is no prospect of success on the merits. Such a hearing can, in my view, be properly described as a hearing on the merits.

3.5 There may, of course, be other reasons why proceedings may be dismissed as being frivolous or vexatious which would not require the court to go fully into the merits of the case. In those circumstances a dismissal may not amount to a bar to future proceedings.

3.6 I am, therefore, satisfied that where a court enters into a consideration of the merits of a plaintiff’s claim on a motion to dismiss as being bound to fail and comes to the conclusion, on the merits, that the proceedings are bound to fail, that it follows that the same proceedings cannot be recommenced without infringing the doctrine of res judicata.

3.7 A second, and analogous, issue arises in relation to the so called rule in Henderson v. Henderson (1843) 3 Hare 100. This rule is concerned with a similar, although different, situation than that to which the doctrine of res judicata strictly speaking applies. Res judicata per se applies where the matter sought to be litigated has already been decided by a court of competent jurisdiction. Res judicata can relate to the cause of action (which may involve a consideration of whether two separate causes of action arise) or an individual issue (issue estoppel). In the latter case, the issue sought to be litigated must be identical to the issue decided in the previous proceedings. (See, for example, Royal Bank of Ireland v. O’Rourke (1962) I.R. 159). The rule in Henderson v. Henderson, on the other hand, applies where a new issue is raised which was not, therefore, decided in the previous proceedings but is one which the court determines could and should have been brought forward in the previous proceedings.

3.8 The importance of the distinction lies in the consequences. If a matter is res judicata then, in the absence of a defence to the application of the doctrine such as fraud, the availability of fresh evidence in respect of issue estoppel only, estoppel, or other special cases, the plea will necessarily succeed.

3.9 On the other hand, where reliance is placed on the rule in Henderson v. Henderson to the effect that it would be an abuse of process to now allow the party concerned to raise a different issue which could have been raised in the original proceedings, it is well settled that the court adopts a more broad based approach. In A.A. v. The Medical Council [2003] 4 IR 302 Hardiman J. (speaking for the Supreme Court) noted the principle to the effect that a party to previous litigation is bound not only by matters actually raised, but matters which ought properly have been raised but were not. However, Hardiman J. went on to determine that a rule or principle so described could not, in its nature, be applied in an automatic or unconsidered fashion and that the public interest in the efficient conduct of litigation did not render the raising of a defence in later proceedings necessarily abusive where in all the circumstances the party was not misusing or abusing the process of the court.

3.10 The distinction is, therefore, quite material. If the actual matter in issue has been determined in previous proceedings, then in the absence of a specific reason, such as estoppel or fraud, it will not be open to the party who lost to re-litigate that question. However, where a party seeks to make a new and different case which, it might be said, ought to have been included in the earlier proceedings, the court enjoys a wider discretion to consider what the result should be having regard to the competing interests of justice.

3.11 I propose applying those principles to the facts of this case.”

“In the premise, it is submitted that the proceedings herein should be permitted to proceed in compliance with the rules and requirements of the Rules of the Superior Courts and in the premise that the reliefs sought by the applicants are to be denied.”

“The jurisdiction under O. 19 r. 28 to strike out pleadings is one a court is slow to exercise. A court will exercise caution in utilising this jurisdiction. However, if a court is convinced that a claim will fail such pleadings will be struck out.”

“An application by way of motion under Order 19, rule 28 is decided on the assumption that the statements in the Statement of Claim are true and will be proved at the trial. Thus this motion relates to and is grounded on the Statement of Claim of the plaintiff.”

“Mr. Iordache has been given leave to seek an order compelling the Irish state to institute proceedings against Romania. I consider that no Court has jurisdiction to direct any such order to the executive. In the words of Article 29.4.1 of the Constitution:-

‘The Executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government’.

In my view, it would fly in the face of this unambiguous provision if the Courts were to take it upon themselves to issue a mandatory order to the State, the Government or the Attorney General directing the institution of proceedings under the Convention on Human Rights against another sovereign State. To do so would be very specifically to usurp a function which the Constitution reserves to the Government. Any such step would be gravely subversive of the constitutional separation of powers and it would be wrong of the Court to contemplate it.

The applicants’ proceedings are of the baldest kind, without any basis in law or fact, and, with the exception of Mr. Iordache’s case, without any attempt to rely on proved individual circumstances either in relation to attacking the decisions taken in respect of the individual applicants or on the broader aspects of their claim. In my view they are all frivolous, vexatious and doomed to fail: indeed they are scarcely recognisable as legal proceedings at all.”

The Supreme Court had to consider three principal issues: (1) Whether the High Court or the Supreme Court on appeal has jurisdiction to set aside an order giving leave to apply for judicial review. (2) Whether the High Court was correct in holding that the respondents were not obliged to have regard to the European Convention on Human Rights, and (3) whether the proceedings brought by Adams and Iordache disclosed any reasonable cause of action against the respondents, were frivolous or vexatious or doomed to fail.

Now, of course, distinctions may be drawn between judicial review proceedings and plenary proceedings. One important distinction is that the leave application in judicial review proceedings operates as a “filtering process” with respect to matters pleaded, and this was certainly alluded to in Adams. However, the ratio decidendi of the decision (insofar as it is relevant to the present case), was (i) that it was not appropriate for the respondents to appeal to the Supreme Court against orders made ex parte by the High Court, granting leave to apply for judicial review; (ii) that, nevertheless, as parties affected by the orders granting leave to apply for judicial review, the respondents must be entitled to impugn the validity of such orders; (iii) that the High Court did have jurisdiction set aside the leave previously granted ex parte if it was satisfied on inter partes argument that the leave was one which plainly should not have been granted, and (iv) that the High Court had been justified in the circumstances of this particular case in setting aside leave and striking out the proceedings as they disclosed no reasonable cause of action and were frivolous, vexatious and doomed to fail. (The Supreme Court also held that as the European Convention on Human Rights was not part of Irish domestic law, and Irish Courts had no part in its enforcement, it was not therefore necessary to consider the arguments made concerning the Convention.)

That was the context in which Hardiman J.’s remarks are to be understood. Moreover, notwithstanding assertions to the contrary in the plaintiffs’ submissions, it does not seem to this court that the quotations from Adams relied upon by the defendants are being taken out of context, or are being inappropriately applied, or in any way misapplied.

176. Further, with reference to Fay v Tegral Pipes Limited, the plaintiffs again say that there must be an appreciation of the context, and they point to the following extract from the judgment of Mr. Justice McCracken:

“In addition to this provision [Order 19, rule 28], the court has an inherent jurisdiction to stay, strike-out or dismiss pleadings where no cause of action is disclosed or if the claim is frivolous or vexatious. This was explained by Costello J in Barry v. Buckley [1981] IR 306 at page 308 where he said:-
‘But, apart from Order 19, the court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp 34-37 and the Supreme Court Practice (1979), at para 18/19/10. The principles on which the court exercises this jurisdiction are well established. Basically, its jurisdiction exists to ensure that an abuse of the process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley LJ. in Goodson v. Grierson at p 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice.’
In this case, the court had before it affidavit evidence setting out the background facts and the issues in relation to each of the claims made. In the present case, to a large extent, the facts themselves are not in issue; what is in issue is the interpretation of those facts and the question of whether the facts can give rise to any cause of action. Indeed, if any facts are in issue, that is not a matter which can be determined on a motion of this nature, and the court must assume that the facts as pleaded or deposed to on behalf of the plaintiff are correct. However, the court is entitled to examine the inferences which the plaintiff seeks to draw from the facts in ascertaining whether those facts can give rise to any reasonable cause of action.

While the words “frivolous and vexatious” are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”

“In deciding to strike out the plaintiff’s claim, I am influenced by the circumstance that the plaintiff has had from the 11th January 2005, to date, to deliver an appropriate amended statement of claim setting out in appropriate terms his claim against the second named defendant but has failed to do so: the amended statement of claim delivered, is totally defective in that it fails to disclose the true basis of the claim against the second named defendant. The defendant in this case has to meet a claim which arose more than 25 years ago and in these circumstances the onus on the plaintiff, having joined the second named defendant, was to proceed promptly and he has not done so”.

“[Paragraph 18 of the] Statement of Claim sets forth as a fact that the representations made by the first second and fourth named defendants (in their various capacities) represented to the plaintiffs and averred to this Honourable Court that they owned and controlled or alternatively were entitled directly or indirectly to the entire beneficial interest of the shares in the second named defendant, the subject of the oppression proceedings. The said representations and averments were also made on behalf of Crindle Investments (Crindle). These representations and averments were accepted as being true and relied upon, and which are now known to be false and or were known to be false by the defendants at the time made, or alternatively became false but were not corrected at the earliest opportunity, or at all, thereby seriously and fatally misleading this Honourable Court and the plaintiffs herein, whereby this Honourable Court was induced into error to make decisions it would not or might not have made had it not been kept out of the true facts.’

[Paragraphs 27, 33 and 34 are first recited in full and it is then stated:] “The applicants, by ignoring the context in which the paragraphs are presented, and by the selection of paragraphs thereby ignore what precedes and succeeds the matters pleaded. Paragraph 33 commences with the phrase ‘In the premises’ all of which the applicants have chosen to ignore and in respect of paragraph [34] those selectively referred to by the applicants are two paragraphs under the heading ‘Particulars of Claim’.
This approach of selectively using extracts to support the applicant’s submissions is further emphasized by the applicant’s reference to Adams v Minister for Justice whereas what is described in that particular matter by the learned judge would not with any stretch of the imagination be relevant in respect of the proceedings before this court – the correct reference being:” [The quotation referred to at para 175 above is then recited.]
“The applicants in their submissions refer to a total of 4 paragraphs extracted from the statement of claim to support assertions of pleadings being ‘so fundamentally flawed in so many respects and that the statement of claim does not disclose any reasonable cause of action: the plaintiffs do not have any reasonable cause of action and their allegations are demonstrably devoid of merit’
The applicants continue in the same paragraph stating that, ‘The foregoing is exemplified by the wholly unparticularised nature of the plaintiffs’ multifarious allegations in relation to the ownership of Crindle, the fact that those allegations are fundamental to the Plaintiffs entire case and the fact that those allegations are demonstrably false and without substance’.
The applicants have at no time advanced any particulars and or other evidence or argument in support of their spurious allegations as to the veracity of the pleadings as set forth in the statement of claim rather they have instead decided the issue independently of what is pleaded with particularity in the Statement of Claim and have drawn conclusions to support their position.

Again, the applicants have ignored the jurisprudence of the court in that the court is obliged to accept the facts as pleaded in the statement of claim and then look to the inference arising from the facts presented - the applicants are now seeking judgement from the court in respect of the facts pleaded and doing so on the basis of a simple selection of four extracts from the statement of claim. Again, the position has been set forth by Mr. Justice Clarke in Moffit v Agriculture Credit Corporation PLC and is repeated hereunder given the significance of this decision in the context of the matter now before this Honourable Court:”

[The quotation referred to at para 170 above is then recited.]

“The legal principles to be applied on an application of this kind are not in dispute. As explained by reference to the judgment of Costello J. in Barry v Buckley, at page 308, it must be clear that the plaintiff’s claim must fail”. The learned judge continued:

“The applicants have laid great emphasis on the judgments in both the Supreme and High Courts in the various cases brought by Denis Riordan and have sought by implication to associate the proceedings herein with those of Denis Riordan. Any such submissions are by their nature spurious and without foundation and are therefore absolutely rejected.”

189. The plaintiffs stress the need for a final decision and have cited the same passage from the judgment of Keane J. in Dublin Corporation v. The Building and Allied Trade Union [1996] 1 I.R. 468 as is relied upon by the defendants (previously quoted at paragraph 119 above).

190. The court was further referred to the same lengthy extract from the judgment of Murray J. in the Supreme Court in the case of P .v. P. [2001] IESC 76, cited by the defendants (and quoted at paragraph 129 above). In addition the following additional passage was quoted:

“Constitutional considerations:
However, the position may be otherwise when a final order is challenged on the grounds that the judicial proceedings in question were gravely flawed by reason of a fundamental breach of fair procedures and justice guaranteed by the Constitution.”

“The Supreme Court has jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final Order. However, it would only arise in exceptional circumstances. The burden on the Applicants to establish that exceptional circumstances exist is heavy.”

Later in her judgment she concluded:

191. The plaintiffs contend that a similar approach to that of Murray J. was adopted by Clark J in the Moffit case.

192. In paragraphs 45 to 48 inclusive of their written submissions, the plaintiffs proffer an analysis of the Bula v Crowley case and suggest that the issues in that case were different to those in the present case. They point out that the issues in that case “were legal, did not address a claim for damages on the merits and the parties were different”. At paragraph 49 they assert:

“It is respectively submitted that the facts of Bula v Buckley …

(The Court presumes there is a typographical error here and that the intended reference is to Bula v. Crowley)

….are distinct from and separate to the matters now before the Honourable Court, the parties are different, the issues litigated were legal issues , the facts as set forth in the Statement of Claim were not in fact dealt with on the merits and did not in fact give rise to a final determination on the merits. For all of these reasons and the reasons set forth in this part of these submissions this particular aspect of the applicants’ submissions are to be ignored, especially where they have sought to adduce new evidence of facts which are not otherwise available to the court and which have no relevance to these proceedings… .”

i) ‘an ulterior motive, seeks a collateral advantage for himself beyond what the law offers’ – Goldsmith v Sperrings Ltd [1977] 1 DPP 478 at 498

ii) ‘to effect an object not within the scope of the process’ ( see Goldsmith ante)

iii) Interests of bona fide litigants should have precedence over the rights of parties who wish to litigate points of law which sometimes are wholly or largely technical in nature and often flimsy in substance for purposes unconnected with public benefit and wholly concerned with private gain’ (Quirke J. in Lonrho plc v Fayed ( No. 5) [1993] 1 DPP 1489 )

iv) ‘a cynical, calculated and unscrupulous fashion for the sole purpose of seeking a commercial advantage over its competitor’ ( Quirke J in Lonrho plc v Fayed ( No. 5) [1993] 1 DPP 1489 )

v) ‘ the harassment and oppression of the parties to the earlier proceedings and not for the purpose of the assessment of legitimate rights’ (Riordan v Ireland ( No. 5) [2001] 4 IR 463)

‘The plaintiff has issued these proceedings because he is dissatisfied with the final judgments given by this court in proceedings in which he was a party and to which, it hardly needs to be said, the defendants were not a party. His dissatisfaction with having his claims in previous proceedings rejected by the court is often expressed in the pleadings in language which is intemperate and tendentious. One of the earlier findings of the court of which he complains in his Statement of Claim was that he “appears to take the view that those who act in the manner inconsistent with his interpretation of the Constitution are not only mistaken but corrupt.”