High Court of Ireland Decisions

Judgment Title: Moorview Developments & Ors -v- First Active PLC & Ors

Neutral Citation: [2010] IEHC 34


High Court Record Number: 2003 9018 P

Date of Delivery: 05/02/2010

Court: High Court

BETWEEN

MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED AND BLONDON PROPERTIES LIMITED

JUDGMENT of Mr. Justice Clarke delivered the 5th of February, 2010

1. Introduction
1.1 Further issues continue to arise in these complex and protracted proceedings. In a judgment delivered on the 6th March, 2009, Moorview Development & Ors v. First Active Plc & Ors [2009] IEHC 214, (the “main judgment”) I came to the conclusion, for the reasons set out in that judgment, that, with certain immaterial exceptions, each of the questions which were then at trial (the “main trial”) were properly the subject of a non-suit.

1.2 For the reasons noted in the main judgment some of the issues in these linked proceedings were left over for further hearing. Indeed, some of those issues, not dealt with in the main judgment, have since been the subject of determination. However, for the purposes of the question which I now have to answer, it is important to note that two of the matters which were, by agreement of the parties and the court, not dealt with at the time of the main trial, were the counterclaim in Case A and the claim in Case D (using the same lettering as is referred to in the main judgment and, in particular, the first schedule thereto). The counterclaim in Case A involves a claim by the first named defendant (“First Active”) against certain of the plaintiffs (“the Cunningham Group”) for monies said to be due by certain companies within the Cunningham Group to First Active. Case D involves a claim by First Active against Mr. Brian Cunningham (“Mr. Cunningham”) personally on foot of guarantees.

1.3 Subsequent to delivering the main judgment, the remaining issues in these linked proceedings were the subject of further case management with a view to bringing same to trial. It was agreed that the counterclaim in Case A and the claim in Case D could conveniently be tried together. However, in the course of preparation for the trial of those matters, it became clear that it was the intention of the Cunningham Group and Mr. Cunningham to seek to re-open, at the hearing of those cases, certain questions which had already been addressed in the main judgment. First Active contended that such a course of action was not permissible. It was agreed that a preliminary question should be tried as to whether it was, in fact, open to the Cunningham Group and Mr. Cunningham to raise as matters of defence (either to the counterclaim or in relation to Mr. Cunningham’s personal liability on the relevant guarantees) issues that were already the subject of the main judgment.

1.4 This judgment is directed to the preliminary question raised. I turn, therefore, firstly to the case made on behalf of the Cunningham Group and Mr. Cunningham.

2. The Case Made
2.1 The principal contention made on behalf of the Cunningham Group and Mr. Cunningham is to the effect that, properly construed, the term “non-suit” does not denote a finding on the merits such as would give rise to the application of the principle of res judicata. I will return to the relevant authorities in due course. However, reference is made to certain authorities from the latter part of the nineteenth century (that is before the Judicature Acts 1877-1888, and the Rules and Orders connected with same, were enacted and the largely equivalent English regime was adopted) from which it does appear that the term “non-suit”, at that time, was used to describe a method by which proceedings could come to an end without a final determination by the court concerned on the issues raised in the relevant proceedings. In part, it would appear that the non-suit procedure was a means whereby a plaintiff could, in effect, withdraw his proceedings without placing a barrier in the way of being able to recommence the relevant proceedings. It would also appear that there may have been a form of imposed non-suit whereby the court could require a plaintiff to enter a non-suit in circumstances where the court was not satisfied that the plaintiff had established a prima facie case, thus bringing the proceedings to an end.

2.2 It must, of course, be recalled that very many proceedings, in those days, were conducted before a judge and jury, so that the role of the judge in such cases was to determine whether the proceedings could ultimately be left to the jury.

2.3 In essence, the case made on behalf of the Cunningham Group and Mr. Cunningham is that the position identified in the nineteenth century United Kingdom jurisprudence remains applicable in this jurisdiction today (at least in so far as an “imposed” non-suit is concerned) so that, it is said, the consequences of a party obtaining a non-suit at the end of the plaintiff’s case does not absolutely debar the plaintiff concerned from raising any issues which were then before the court, on a subsequent occasion. Before going on to analyse that proposition it is next appropriate to briefly set out First Active’s response.

3. First Active’s Response
3.1 First Active accepts that, up to the passage of the Judicature Acts, there was distinction between a non-suit on the one hand and a dismissal of a plaintiffs claim on the other hand such that, at that time, a non-suit did not amount to a verdict or determination sufficient to debar the plaintiff concerned from raising again any of the issues which were before the court. However, it was argued on behalf of First Active that the form of non-suit that is referred to in the Victorian jurisprudence ceased to exist as a result of certain measures adopted in the course of the enactment of the Judicature Acts (which, it will be recalled, were pursued in a similar parallel fashion applicable, respectively, to Ireland on the one hand and England and Wales on the other hand) so that, it is said, the term “non-suit” no longer describes the nineteenth century procedure to which the relevant jurisprudence refers.

3.2 Rather, it is said, a non-suit in the Victorian form ceased to exist as a result of the passage of the Judicature Acts. However, it is said that the term continued to be used in this jurisdiction interchangeably with the term direction, such that there was no material difference between the term “non-suit” and “direction” both of which, it is said, amount to a dismissal on the merits such that any issues raised in the proceedings which were properly the subject of a non-suit, can be said to have been determined against the plaintiff concerned and be the subject, therefore, of the application of the doctrine of res judicata.

3.3 It is clear, therefore, that there is no dispute but that the relevant nineteenth century jurisprudence, which was relied on by the Cunningham Group and Mr. Cunningham, did once represent the law in this jurisdiction. For those reasons it will not be necessary to go into it in any great detail. The real issue between the parties is as to whether that jurisprudence has any continuing relevance in the early years of the twenty first century. Before going on to those questions I should, however, briefly refer to one aspect of the procedural history of the hearing before me, for it has a bearing on the way in which I intend to approach this judgment.

4. Relevant Procedural History
4.1 Towards the end of the hearing, I intimated to counsel for the Cunningham Group and Mr. Cunningham that it had not been my personal experience, as either a barrister practicing in this jurisdiction for over thirty years or sitting as a judge for five years, that practitioners had made any distinction between a direction and a non-suit. I further suggested that it may well have been the case that some practitioners (and, indeed, some judges) felt that the term non-suit was more appropriate in the case of a trial which was being conducted without a jury, having regard to the fact that the term “direction” can be a somewhat misleading term in circumstances where there is no jury to be directed.

4.2 Arising out of those comments counsel for the Cunningham Group and Mr. Cunningham asked for an opportunity to file further written submissions, directed solely to that question, in the event that it was considered prudent to do so. This course of action was agreed to be subject to the right of First Active to file replying submissions. Both such submissions were filed. I will, in due course, refer both to the submissions and some of the cases referred to in same. I now return to the nineteenth century non-suit.

5. The Non-Suit in History
5.1 A non-suit was a right given to a plaintiff to withdraw his claim and that term subsequently extended to the power of a court to order a non-suit, effectively requiring a plaintiff to withdraw his claim. Historically, whether the non-suit was applied for by the plaintiff or ordered by a court without the plaintiff’s consent, no res judicata was created by a non-suit at common law and a plaintiff was, thereafter, free to bring fresh proceedings raising the same issue.

5.2 In this respect, the Cunningham Group and Mr. Cunningham referred to Outhwaite v. Hudson (1852) 7 Ex 380, which concerned an appeal against a refusal to allow a plaintiff to enter a non-suit. Parke B. held that the relevant plaintiff had a common law right to be non-suited and “thereby to reserve to himself the power of bringing a fresh action for the same subject matter.”

5.3 In Poyser v. Minors (1881) 7 QBD 329, Lush L.J. set out the position at common law of a plaintiff who had been non-suited at p. 332:-

“A non-suit at common law was nothing more than a declaration by the Court that the plaintiff had made default in appearing at the trial to prosecute his suit. The entry on the postea was that “the said AB being solemnly called comes not, nor does he further prosecute his suit against the said CD.” It decided nothing as regard the matters in dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, and this he might have done either in the same or different court, subject only to having the proceedings stayed till he had paid the costs taxed against him on the non-suit.”

5.5 The rules of procedure for the English High Court, attached to the Supreme Court of Judicature Act 1873, and subsequent measures have been interpreted as providing for the abolition of a plaintiff’s right to chose to be non-suited. The relevant non-suit provisions were replaced by discontinuance, which can only take place on application of the plaintiff and does not itself preclude the bringing of a fresh action. In Ernst and Young v. Butte Mining Plc [1996] 1 All E.R. 623, Robert Walker L.J. confirmed that discontinuance had superseded procedures such as non-suit or voluntary dismissal of a bill in chancery.

5.6 In this jurisdiction, a plaintiff’s right to choose to be non-suited also appears to have been abolished by O. 26, r. 1, in the Rules of the Supreme Court (Ireland) 1905. Likewise in Smyth v. Tunney [2009] IESC 5, which concerned an appeal against an order of this Court allowing withdrawal of a notice of discontinuance, Finnegan J. allowed the appeal having reviewed the English authorities, such as Ernst and Young v. Butte Mining Plc, to the effect that the rules as to discontinuance provided a complete code and that the right to elect to be non-suited had disappeared.

5.7 The historical position does, therefore, seem clear. Prior to the Judicature Acts there was, undoubtedly, a form of order then called a non-suit which had the effect of bringing the proceedings to an end, and which was no bar to proceedings based on the same issues being recommenced. That form of order could be obtained on the application of the plaintiff or as a result of the court imposing a non-suit on a plaintiff on the application of the relevant defendant.

6. Subsequent Developments
6.1 The initial change came about as a result of parallel measures in Ireland and England with the Irish measure being found in O. 40, r. 6 of the Rules of the Superior Courts of 1877 which, like its English counterpart O. 41, r. 6, provided that a non-suit had the effect of a judgment on the merits. Those Rules were repealed and not re-enacted. However, at the same time the Rules in both England and Ireland made provision for a discontinuance. There is ample authority, not least in Smyth v. Tunney, for the proposition that discontinuance represents a complete code and that the right of a plaintiff to elect to be non-suited was abolished. There is no dispute between the parties, therefore, but that what one might term an elective non-suit (i.e. a non-suit which a plaintiff elects for) such as formerly existed was abolished by the measures introduced at the time of the Judicature Acts and has been replaced by discontinuance.

6.2 Counsel for the Cunningham Group and Mr. Cunningham argues, however, that there was another type of non-suit which has not, in substance, been abolished. It is argued that the form of compulsory non-suit, as a result of which a defendant obtained an order from the court requiring the relevant plaintiff to enter a non-suit, was a different species of non-suit and that that form of imposed non-suit has not been abolished. It is said by counsel for the Cunningham Group and Mr. Cunningham, therefore, that a non-suit of that type in this jurisdiction remains the same as such a non-suit prior to the Judicature Acts and thus does not give rise to a judgment on the merits sufficient to invoke the doctrine of res judicata, leaving a plaintiff free to raise issues on which he has been non-suited in fresh proceedings.

7. Analysis

7.1 As far back as 1942, the Supreme Court, in White v. Spendlove [1942] I.R. 224, followed the English decision of Fox v. Star Newspaper Co. [1898]1 Q.B. 636 and [1900] AC 19. Murnaghan J. (who was part of the majority in White v. Spendlove) approved, at p. 239, of a passage from the judgment of the Earl of Halsbury in Fox at p. 20 where the following is stated:-

“The substance is that when it once comes to Court and when the plaintiff offers no support to his action there must be a verdict for the defendant.”

“It is quite true that since 1883 the term “non-suit” has been used in some cases instead of “judgment for the defendants”, as appears from the book; but in my opinion there is now no such thing as a non-suit in the proper sense of the term.” (See p. 637)

“I think that O. XLI, r. 6 of 1875 has been advisably omitted from the Rules of 1883 because there is really no such thing now as a judgment of non-suit, and it was found that the matter with which the rule dealt is provided for by the rule as to discontinuance, namely O. XXVI, r. 1 which provides that, after a certain stage, the plaintiff cannot without leave of the High Court discontinue the action.”

7.5 The question might be asked as to what basis there was for continuing to entertain an application by a defendant at the end of the plaintiff’s case which sought to bring that case to an end. The fact remains that courts have considered themselves to have had such a jurisdiction at all material times since. That the practice in this jurisdiction was not necessarily the same in that regard as in England is also clear. For example, in Fletcher v. London and North Western Rail Company [1892] 1 QB 122, it was held that a trial judge had no right to non-suit a plaintiff without his consent on his counsel’s opening statement. As pointed out in a previous ruling by me in this case, the Irish Courts have always considered that they had a jurisdiction to dismiss on the plaintiff’s opening in an appropriate case, albeit that the relevant jurisdiction was one to be sparingly exercised. Moorview Developments v. First Active Plc [2008] IEHC 211.

7.6 In my view, the modern approach of the courts in this jurisdiction to applications which arise either on the opening or at the close of the plaintiff’s case or, indeed, in cases which remain tried by jury, at the close of the evidence as a whole, stems from the inherent jurisdiction of the court to order its procedure for the purposes of preventing injustice. The jurisdiction to dismiss on the basis of the proceedings being bound to fail, as first identified in Barry v. Buckley [1989] I.R. 306, is an example of that inherent jurisdiction. It would be strange indeed if the court had a jurisdiction to dismiss proceedings long before trial on the basis that they were bound to fail, which jurisdiction derived from its inherent jurisdiction, but could not, at a subsequent stage in the proceedings, when it became clear that the case was bound to fail, not also exercise a similar jurisdiction. It is on that basis that the entitlement to dismiss on the opening, or at the close of the plaintiff’s case, or at the end of all of the evidence, arises. If, at any stage, it becomes apparent that the plaintiff cannot succeed, and if there are no countervailing factors which might lead to a different view being taken, then the justice of the case requires that the proceedings be brought to an end.

7.7 There can be little doubt but that the term non-suit has been used in many cases in the period since the Judicature Acts. However, it seems to me that it is clear that, in its modern sense, there is no meaningful distinction between a non-suit, a direction, or a dismissal of the plaintiff’s case at the close of the plaintiff’s evidence. An analysis of the many judgments referred to in the course of the hearing before me suggests that the terms are used interchangeably. In the course of the additional submissions filed by both sides, to which I have already referred, many further cases were cited. I do not believe that there is any consistent use of terminology to be found in those cases such as would suggest a clear distinction between a non-suit and a direction.

7.8 It was said on behalf of the Cunningham Group and Mr. Cunningham that a distinction of substance can be found between an application at the end of the plaintiff’s case in circumstances where the defendant indicates that it reserves its right to go into evidence, and a case where the defendant gives an undertaking not to go into evidence, which distinction, it is said, justifies the court taking a different approach as to whether the consequences of the application being successful operate as a barrier to further proceedings. I cannot see any basis for that suggestion.

7.9 The distinction between the two types of application at the close of the plaintiff’s case, which was the subject of analysis by the Supreme Court in Hetherington v. Ultra Tyre Services Ltd [1993] 2. I. R. 535, is a logical and purely procedural distinction. Where a defendant reserves a right to go into evidence, then there are obvious reasons why the defendant’s application should be assessed on the basis of considering whether the plaintiff has made out a prima facie case. The obligation on a plaintiff is to put forward evidence which, if true, would warrant the plaintiff succeeding. It is only if the plaintiff fails to meet that threshold, that the proceedings should be brought to an end. To invite a court, where it may well hear further evidence in the event of refusing the defendant’s application, to nonetheless approach the plaintiff’s evidence on a balance of probabilities basis is a recipe for disaster.

7.10 However, where it is clear that there will be no further evidence, then, in substance, the case is at an end subject to the submissions of the parties and it is obvious that the court should then consider the case on the basis of the balance of probabilities, for it will not have any other evidential material to take into account. In the former case there is nothing, of course, at all unsatisfactory in the court indicating, at the close of the plaintiff’s case, that the plaintiff has made out a prima facie case, but in the nonetheless rejecting that case when the court has had the opportunity of hearing the defendant’s evidence. There will be many cases where the plaintiff will put forward evidence which might well be persuasive in the absence of equally or more persuasive evidence from the other side. A plaintiff’s apparently credible account of how an accident occurred might well be accepted until a more credible account is given by, perhaps, an independent witness called by the defendants.

7.11 On the other hand to invite the court to give one view, on the balance of probabilities, having heard only the plaintiff’s evidence and then, in the event that the defendant’s application failed, to be required to give a second view as to the same facts having heard additional evidence and applying the same test, would give rise to very obvious difficulties.

7.12 The distinction made in Hetherington is, therefore, based purely on procedural considerations as to how the rest of the case is going to run and does not, in my view, offer any basis for suggesting that there is or should be a difference in substance between the nature of the applications made or, thus, in the consequences which flow from a successful application. For the reasons which I have sought to analyse, I am not satisfied that, even at a technical level, there is any legitimate basis for the contention that the Victorian form of imposed non-suit has survived into modern times. Rather, it seems to me to be clear that the term non-suit has come to be used to refer to an ordinary application made at the end of the plaintiffs’ case for what is, in substance, a dismissal on the merits on the basis that the plaintiff has failed to discharge the onus of proof on it. I should not conclude without, however, dealing with two further matters. The first concerns the logic of there being a distinction of the type which is urged on behalf of the Cunningham Group and Mr. Cunningham. I turn to that question.

8. What is the Logic of the Distinction
8.1 In order that a plaintiff suffer a non-suit at the close of its case, it is necessary for the court to conclude that it has not put forward evidence to discharge the onus of proof on it. It seems to me that such a finding amounts to a determination on the merits. The plaintiff has had access to the court. The plaintiff has had access to any pre-trial procedures that may be available to it (or if it has not availed of same it can only be through its own neglect). The plaintiff has been able to present any admissible evidence available to it and can, indeed, in an appropriate case, in accordance with the rules, subpoena witnesses (including witnesses, if necessary, who might be colloquially referred to as defendant’s witnesses). The plaintiff is entitled, in the event that the relevant defendant indicates that it may go into evidence, to have the court assess its case on the facts on a basis very favourable to it. In all those circumstances it seems to me that logic points in only one direction. The decision made by the court in favour of a defendant in such circumstances is a decision on the merits. It is a decision that the plaintiff has not made out any case. It would be to fly in the face of logic, in my view, to take any other view.

8.2 If there were clear and binding authority which required that, notwithstanding the above, the decision of the court on such an application did not amount to a decision on the merits giving rise to res judicata then I would, of course, follow it. However, in the absence of any such clear and binding authority, it seems to me that very considerable additional weight is lent to the technical analysis of the position in which I have already engaged as a result of the illogicality of adopting any other view. Finally, it seems to me that I should turn to the way in which the application in the main hearing was moved and dealt with.

9. The Application in the Main Hearing
9.1 It is important to emphasise that the application made on behalf of First Active at the main hearing was described in its written submissions as an application for a dismissal although it is true to say that, as is the case in many of the authorities, the terms “dismissal” and “non-suit” were used interchangeably.

9.2 I should also draw attention to the fact that, at para. 5.13 of the main judgment, I referred, in an analysis of the decision of the Supreme Court in Hanafin v. Minister for Environment [1996] 2 IR 321, to the fact that the test in Hetherington and O’Toole v. Heavey [1993] 2 I.R. 544, derived from the role of judge in respect of a trial where facts are to be determined by a jury. I noted that the case was not permitted to go to the jury, and would be dismissed by direction, where the evidence is not such as would permit a jury properly directed to reasonably find for the plaintiff. I went on in the same paragraph to refer to the fact that it equally followed that in a case being tried without a jury a non-suit should be allowed. It seems to me that the terms directions, dismissal and non-suit were, as appear in many of the authorities, used interchangeably by me in the main judgment in this very case. It is also clear, from para. 5.21, that I used the term non-suit as being applicable both in the case of a defendant who indicated an intention to go into evidence and in respect of a defendant who took the opposite position.

9.3 No point was made at the main hearing on behalf of the Cunningham Group which sought to make any distinction between what is now said to be a non-suit properly so called and a direction. Two possibilities arise. It is possible that the Cunningham Group had not averted to the argument now made at the time of the main trial. Having allowed the terms non-suit, dismissal and direction to be used in an interchangeable fashion in the course of the hearing without raising any query about it, it would seem to me to amount to an impermissible act of opportunism for the Cunningham Group to now seek to place reliance on a distinction which was manifestly not clear to either the parties or the court in the course of the hearing. If, on the other hand, the Cunningham Group and Mr. Cunningham were, in fact, aware of the possibility of making the distinction which is now argued for, and nonetheless allowed the terms to which I have referred to be used interchangeably, silence in those circumstances would appear to me to be tantamount to an abuse of process.

9.4 In either event, I would not be satisfied to allow the Cunningham Group or Mr. Cunningham to place any reliance on the distinction which they argue for, even if I had been satisfied that it existed. Their silence at a time when they ought or must have been aware that no distinction was being made either by their opponents or the court would now, in my view, debar them from placing any reliance on the distinction even if it existed.

9.5 Finally, I should note that it was clear that Mr. Cunningham was the prime instructing and moving party behind each of the plaintiffs in the Moorview case and I did not understand any argument to be put forward to the effect that, if the findings in the main judgment were binding, they would equally bind Mr. Cunningham as well as the companies within the Cunningham Group.

10. Conclusions
10.1 I am, therefore, satisfied that any matters determined in the main judgment are binding as against the Cunningham Group and Mr. Cunningham personally in both the counterclaim proceedings in Case A and in respect of the guarantee proceedings, being Case D.

10.2 It follows that no evidence can be tendered on behalf of the Cunningham Group or Mr. Cunningham and no argument can be raised which infringes the res judicata rule by reference to relevant findings and determinations in the main judgment.