High Court dismisses plaintiff's claim against solicitors as frivolous, vexatious, and lacking reasonable cause of action.

Neutral Citation Number: [2010] IEHC 383

THE HIGH COURT

2009 8581 P

BETWEEN

THOMAS TALBOT

PLAINTIFF

AND

McCANN FITZGERALD SOLICITORS, AVIVA PLC AND

UNITE THE UNION

DEFENDANTS

JUDGMENT of Mr. Justice Hanna delivered the 8th day of October, 2010

The plaintiff in this case is a lay litigant. While he describes himself as a “self litigant”, he has been described by others as a “serial

litigant” (Kearns J., Supreme Court) and a man with grievances.

The background to the plaintiff’s woes has already been extensively described in the following judgments:-

(i) Thomas Talbot v. Hibernian Group plc & Amicus the Union [2007] IEHC 385, (Unreported, High Court, Irvine J., 14th

November, 2007);

(ii) Thomas Talbot v. Hibernian Group plc & Amicus the Union [2009] IESC 27 (Unreported, Supreme Court, 26th March,

2009) – Judgment of Kearns J. on appeal from the foregoing decision of Irvine J.

(iii) Thomas Talbot v. McCann Fitzgerald Solicitors, Mrs. Thérése Talbot, Judge Michael White, Judge Jacqueline Linnane,

Courts Services, Chief State Solicitor [2009] IESC 25 (Unreported, Supreme Court, 26th March, 2009) – Judgment of

Denham J.

I do not propose to set out in detail yet again the factual background to this case although it is important that I map out how we

come to be where we are now. It should be noted that in the Supreme Court, on appeal from the decision of Irvine J., it was noted by

Kearns J. that, apart from one minor matter, the plaintiff did not raise any significant dispute with the factual background as

described by Irvine J. Very briefly, the plaintiff has been engaged on several fronts in legal disputes over the past three decades.

Firstly, he has to deal with the undoubted trauma of family law proceedings leading to judicial separation and ultimately divorce from

his wife, with the attendant significant ramifications. He then came into dispute with his employer, Hibernian plc. (now Aviva plc),

leading, inter alia, to a situation where he was unfairly overworked and considerably underpaid (as he would see it) given his seniority,

in contrast with others engaged by his employer. Thirdly, he has been engaged in litigation with his trade union, formerly Amicus the

Union and now Unite the Union, complaining, inter alia, about the failure of the union to represent his interests and the conduct of the

union and the solicitors at one stage engaged on his behalf. The issue of his pension entitlements spans all the proceedings.

In the above proceedings, the plaintiff now seeks to involve the first named defendants, Messrs. McCann Fitzgerald Solicitors, who

previously acted for Mrs. Talbot in the matrimonial proceedings to which I have earlier referred. Although this is the first time the

plaintiff has sued them in plenary proceedings, he did previously seek to involve them in judicial review proceedings. Along the way,

he became involved in litigation involving his Golf Club. The details of this do not concern us here.

A Brief History of the Litigation to Date

The plaintiff’s family law litigation took up the 1990s and spilt into the new millennium. He was legally represented at one stage, but

his solicitor and counsel came off record at some undefined point (he sought to lay blame for this on the first named defendant in the

current proceedings). Otherwise, he has represented himself. He has appeared before a number of judges both in the High Court and

Circuit Court, a few of whom he regards reasonably highly. To others, however, he attributes base motives for the decisions they

have made, such decisions being adverse to him. The final act in the family law litigation was an appeal from a pension adjustment

order made in the Circuit Family Court and which was rejected by Abbott J. on the 26th June, 2002.

The plaintiff then sought judicial review of that order and applied to Quirke J. on the 7th September, 2003, at which point his

application was already significantly out of time. Quirke J. refused the order. The plaintiff then made a further application ex parte for

judicial review citing McCann Fitzgerald Solicitors, the first named defendant herein, and his former wife as respondents. This

application was made on the 12th December, 2005, (nearly three years out of time) to Peart J., who reserved judgment and refused

leave on the 6th February, 2006. The judicial review application was given Record No. 2005 No. 1423 J.R. A copy of Mr. Justice

Peart’s judgment was not made available to me but an extract from it is contained in a judgment of the Supreme Court delivered by

Denham J. (see below). The plaintiff seems to have been somewhat confused as to what was going on and, at one stage at least,

was of the view that he had been granted leave. At one stage he even suggested that some person had interfered with Peart J.’s

judgment. However, it is abundantly clear that Peart J. refused leave.

This refusal was appealed to the Supreme Court which, in an ex tempore judgment delivered by Fennelly J. on the 29th June, 2007,

dismissed the appeal. On the 11th January, 2008, the plaintiff brought an ex parte motion seeking on order vacating the order of the

Supreme Court of the 29th June, 2007. At this stage, according to the written judgment, a number of other parties appear to have

been added to the proceedings. This relief was refused by the Supreme Court. The appeal and the application to vacate bear Record

Number 2006 No. 114 and the judgment of the Court was handed down by Denham J. on the 26th March, 2009 (see [2009] IESC 25

(Unreported, Supreme Court, 26th March, 2009)). The application was refused.

While all of the foregoing was taking place, the plaintiff was active on another front. He commenced proceedings in April, 2006 against

Hibernian Group plc. (now Aviva plc.) and Amicus the Union (now Unite the Union). These proceedings bear Record Number 2006 No.

1726 P.

I will return later to the nature of proceedings authored by the plaintiff. These proceedings were met by a motion from Amicus the

Union seeking to have the proceedings struck out on the grounds that they disclosed no reasonable cause of action and that they

were frivolous and vexatious. On the 11th January, 2007, Dunne J. struck out the proceedings on the former but not on the latter

ground. A note of the judgment was made by Ms. Aileen Fleming, a solicitor in the above third named defendant’s solicitors firm,

Messrs. Donal Spring & Co., to which the plaintiff appeared to take some exception during the hearing of this matter. Having read it, it

appears to me to be a complete and professionally prepared note of an ex tempore judgment in which it is clear that the learned

judge had considerable compassion for the plaintiff’s plight. Nonetheless, since he has some objection to it, I will not cite it. There

can be no doubt, however, as to the terms of the order granted by Dunne J. The plaintiff did not appeal that decision.

It is of some note that Hibernian Group plc. did not bring a motion seeking relief along the lines sought by Amicus the Union.

The plaintiff then proceeded to issue a further set of proceedings against the same defendants later in January, 2007, such

proceedings bearing Record Number 2007 No. 433 P. These proceedings came before Irvine J. In her written judgment delivered on the

14th November, 2007, the learned judge ordered that the proceedings against Amicus the Union be struck out as disclosing no

reasonable cause of action. She further ordered that the plaintiff’s claim against Amicus the Union be dismissed as frivolous or

vexatious. It was that order that was appealed unsuccessfully to the Supreme Court. Again, no motion appears to have been brought

by Hibernian Group plc. seeking similar relief.

The order of Irvine J. was appealed to the Supreme Court unsuccessfully by the plaintiff (see judgment of Kearns J. referred to

above).

Thus we arrive at the current proceedings.

The Present Proceedings

I earlier stated that I would return to the nature of the “proceedings” brought by the plaintiff and it is useful at this juncture to deal

with same. I have taken some time to read through the variety of documents, some typed and many handwritten. I have also heard

the plaintiff’s oral submissions, which lasted for a period of approximately two and a half hours. This exceeded the time taken up by

counsel for the first and third named defendants combined, the third named defendant’s counsel, Mr. Devlin S.C., having opened the

pleadings during the course of his submissions. Like other judges before me, I have found great difficulty in trying to glean from the

documents and from the oral submissions precisely what the nature of the plaintiff’s complaints in law against the various parties are.

It is, however, abundantly clear, as has been noted by other courts, that the plaintiff is a person with many grievances relating to his

matrimonial proceedings and his relationship with his former employer and trade union. It was readily apparent to me during the course

of his oral submissions that he was fighting past battles yet again.

The following citations exemplify the problems in dealing with the plaintiff’s proceedings. Denham J. in her judgment in the ex parte

judicial review proceedings, Talbot v. McCann Fitzgerald Solicitors & Ors. [2009] IESC 25, (Unreported, Supreme Court, 26th March,

2009), cites Peart J. at p. 11 as saying:-

“I will not attempt to try and set forth the grounds upon which the applicant seeks to rely in the papers prepared by him

since the contents are so incomprehensible that such a task is impossible. But it is without any doubt in my view that it is

an attempt to impugn orders of the Circuit Court made several years ago and in respect of which appeals have been

heard and adjudicated upon.”

In his judgment on the appeal from Irvine J. in the case of Talbot v. Hibernian Group plc. & Amicus the Union [2009] IESC 27

(Unreported, Supreme Court, 26th March, 2009), Kearns J. (as he then was) says at pp. 12-13 of his judgment:-

“The learned trial judge was, in my view, restrained in her characterisation and comments about the documentation

furnished by the plaintiff. I am in this context adverting (sic) not only to the seven statements of claim advanced by the

plaintiff, but also to his voluminous submissions, including those filed following the conclusion of the appeals herein. The

same are in my view prolix, unfocused and irrational to a high degree and almost entirely unrelated to the issue before the

Court. There is no attempt made to engage with the reasoning of the learned trial judge or to provide grounds for

challenging her conclusions both that the proceedings are frivolous and vexatious and that they fail to disclose a

reasonable cause of action.”

In the current case, the plaintiff issued a plenary summons. This was then followed by three documents which he refers to as being

statements of claim, but which appear to be more in the format of statements per se. Insofar as one can ascertain precisely what

reliefs the plaintiff is seeking, each of the three “statements” is prefaced with the following:-

“Application for Breaches of Constitutional and Legal Rights Concerning Perversion of Justice, Fraud, Theft, Conspiracy,

and Defamation before Judge and Jury in High Court, Dublin 7.”

I must invoke the spirit of the remarks of Peart J. and Kearns J. I find myself in no stronger position than they in identifying the case

advanced by the plaintiff. As in the previous proceedings, it appears to me, as urged upon me by counsel for the first and third named

defendants, that the plaintiff is seeking to revisit and reopen litigation long since concluded.

The Present Application

The three defendants have brought motions seeking to have the plaintiff’s claim dismissed or struck out pursuant to O. 19, r. 29 of

the Rules of the Superior Courts, 1986 and/or pursuant to the inherent jurisdiction of this Court on the ground that the proceedings

disclose no reasonable or sustainable cause of action. They further make the case that the plaintiff’s claim is frivolous or vexatious.

The first named defendant urges that the proceedings constitute an abuse of process. That defendant also seeks a declaration that

the issues between the plaintiff and that party are res judicata as a consequence of the ex parte hearings in the Supreme Court in

the judicial review application. The defendants also rely on the fact that the proceedings are statute barred. Finally, all defendants

seek what is colloquially known as an “Isaac Wunder Order” seeking to restrain the plaintiff from taking any further proceedings

against the named defendants without leave of the High Court.

The third named defendant did not rely on want of form on the part of the documents served by the plaintiff. However, the first

named defendant did object to the documents on these grounds.

During the course of submissions on behalf of the second named defendant, it was drawn to my attention that that defendant had

not previously brought a similar application seeking the reliefs now sought in either of the two previous sets of proceedings brought by

the plaintiff against it. It struck me that it was appropriate that the second named defendant’s application should be joined with

similar applications in respect of the other proceedings. The second named defendant’s application was then adjourned generally and

since the matter may proceed by way of further application I will refrain from further comment.

I propose to deal with the applications of the remaining defendants in reverse order as they were opened to me. I should observe that

the plaintiff also brought a motion, the purport of which is unclear to me. It appears to be something in the form of a motion in default

of defence. In any event, that motion was left in abeyance pending the outcome of the motions brought by the defendants.

The Third Named Defendant’s Application

Having read the papers and having heard the legal submissions in this case advanced by the plaintiff, I am satisfied that the case he

seeks to make against his trade union is substantially the same, if not identical, to the case he sought to advance in two previous

sets of proceedings. The plaintiff did not, in my view, make any effort to attempt to identify some new or fresh cause of action.

Thus, we are left in a situation where two sets of previous proceedings levelling much the same case against the third named

defendant have been struck out by the High Court. The most recent (the 2007 proceedings) were struck out on the grounds that the

pleadings failed to disclose the cause of action and the proceedings were frivolous and vexatious and an abuse of process of the

courts. The correctness of this decision by Irvine J. has been endorsed by the Supreme Court. As regards the case brought against

the third named defendant, I am of the same view. In my view the case is unsustainable and is frivolous and vexatious. It is my

opinion that the plaintiff seeks to use the courts of Ireland as a battlefield to wage unrelenting war against, inter alia, the third

named defendant. It is my view that such recycling of an unsustainable case is both oppressive of the third named defendant and

abuse of the processes of this Court.

This Court has jurisdiction pursuant to O. 19, r. 28 of the Rules of the Superior Courts, 1986, to strike out any pleading on the

grounds that it discloses no reasonable cause of action or is frivolous or vexatious or an abuse of the process of the courts (see

McCracken J. in Fay v. Tegral Pipes Ltd. [2005] 2 I.R. 261 and Costello J. in Barry v. Buckley [1981] I.R. 306). Further, where the

court is of the view that a party persistently engages in vexatious or frivolous civil proceedings, it can order that the offending party

be restrained from so acting. In Riordan v. Ireland (No. 5) [2001] 4 I.R. 463, Ó Caoimh J. states at p. 465:-

“Where the court is satisfied that a person has habitually or persistently instituted vexatious or frivolous civil proceedings

it may make an order restraining the institution of further proceedings against parties to those earlier proceedings without

prior leave of the court. In assessment of the question whether the proceedings are vexatious, the court is entitled to

look at the whole history of the matter and it is not confined to a consideration as to whether the pleadings disclose a

cause of action. The court is entitled in the assessment of whether proceedings are vexatious to consider whether they

have been brought without any reasonable ground.”

The courts are not a forum for the ventilating of lost causes (see McCracken J. in Fay v. Tegral Pipes Ltd., cited above).

As regards the third named defendant, I am satisfied that the proceedings against it should be struck out both pursuant to the Rules

of the Superior Courts and by way of exercise of the inherent jurisdiction of this Court to do so upon the grounds that the pleadings

disclose no sustainable cause of action and that they are bound to fail and that the proceedings are frivolous and vexatious and

constitute an abuse of the process of this Court. I am satisfied from the way the plaintiff has conducted the litigation over the years

that he is likely to attempt yet again to bring proceedings under some other form or guise. It is, in my view, of importance to note

that when his 2006 proceedings were struck out by Dunne J. his almost immediate reaction was not to seek to appeal her decision,

but to issue fresh proceedings levelling, in effect, the same allegations, inter alia, at the third named defendant. I am fully conscious

of the fact that the court must exercise great caution in considering any act restraining the citizen’s right of access to the courts.

Nonetheless, the third named defendant comes before this court with rights certainly no greater than, but at least equal to those of

the plaintiff and, most importantly, is entitled to the benefit of finality of litigation and protection from oppressive litigious conduct by

another party (see judgment of Keane C.J. in Riordan v. An Taoiseach [2001] I.E.S.C. 83 (Unreported, Supreme Court, 19th October,

2001)).

Accordingly, I will accede to the third named defendant’s request for an order restraining the plaintiff from taking any further

proceedings against it unless so permitted by this Court.

The First Named Defendant’s Application

The legal principles which I have enunciated obviously govern the first named defendant also.

The allegations levelled at the first named defendant are to be found principally in the second of the plaintiff’s “statements”. These

“statements”, in turn, rehash many of the allegations made in previous cases to which the first named defendant was not party and,

to some extent at least, were made in the two ex parte hearings before the Supreme Court.

The family law proceedings in this matter constitute the parameters of the plaintiff’s grievances against this defendant. These

commenced in 1989 and were heard by a number of Circuit Court judges and by the High Court on appeal from the Circuit Court. As

noted above, the last act in that sequence was the order of Abbott J. on the 26th June, 2002, refusing the plaintiff’s appeal from the

pension adjustment order of the Circuit Family Court. Thus over eight years have elapsed since this matter was concluded. In his oral

submissions and in the documents prepared by him in this and in the previous cases, the plaintiff repeated a number of allegations

against the first named defendant and, indeed, several members of the judiciary. Of course, one must accept the factual matrix, i.e.

that the plaintiff was engaged in no doubt torrid and upsetting litigation over a period of some twelve or thirteen years. His wife was

legally represented and so was he at one stage but, as noted above, his solicitors and counsel came off record. A number of court

orders went against him and, no doubt, this weighed heavily on him then and still does. But that does not mean that this Court must

go on to accept the inferences, some of them quite scandalous, which he invites the courts to draw from the sequence of events,

which undoubtedly took place, namely the conduct of family law proceedings. The Court is not obliged to accept the inferences of

corruption and impropriety levelled by the plaintiff.

The family law proceedings were conducted before judges of Circuit Family Court and the High Court, as I have said. They are at an

end and have been since 2002. No appeal lies to any court from the various decisions of the High Court judges who became engaged

with the plaintiff’s litigation. This Court is entitled to assume, and does assume with utter confidence, that proceedings conducted

before the various learned judges were done so wholly in accordance with the law and with due regard to the rights of the

unfortunately conflicting parties.

In my view, the documents, insofar as they set out allegations against the first named defendant, disclose no reasonable cause of

action against it and are unsustainable in law and are frivolous and vexatious. In my view, they constitute a vehicle whereby the

plaintiff seeks to vent his spleen and frustration in respect of legal “reverses” which he cannot otherwise reopen. It was apparent in

his oral submissions to me that the plaintiff availed of the court time to recite in full his complaints in respect of the family law

proceedings, his union representative and his employer (even though their legal representatives were no longer present).

I therefore accede to the first named defendant’s application to strike out the proceedings for the reasons stated.

Two further matters remain. Firstly, the first named defendant seeks a declaration that the issues raised by the plaintiff in these

proceedings are res judicata. I fear that such a declaration would be legally unsound. In the first instance, the first named defendant

did not engage in the judicial review proceedings at any stage. This is confirmed in the affidavit grounding the first named defendant’s

application. Secondly, and more importantly, the issue with which both the High Court and the Supreme Court on appeal were

confronted was whether or not to grant leave to bring judicial review proceedings. In the Supreme Court, additionally, the issue of

whether or not that Court ought to vacate its order was also litigated on the plaintiff’s application. Although some comments may

have been made concerning the plaintiff’s allegations against the first named defendant, it seems to me that any such comments

were obiter and that there was no definitive ruling on the plaintiff’s case against the first named defendant. For that reason I decline

to make a declaration as sought.

As regards the “Isaac Wunder Order”, having regard to what I have said in relation to the issue of res judicata, I feel I must treat

these present proceedings against the first named defendant as the first (and hopefully the last) such proceedings. The mere

suspicion (however strong) that the plaintiff might yet again attempt to sue the first named defendant notwithstanding the finding of

this Court is not, in my view, sufficient to justify making an Isaac Wunder Order. I feel that something more by way of a track record

would be required involving this Defendant to lay the grounds for fettering the plaintiff’s constitutional right of access to the courts.

It may well be that the plaintiff will now lay down his pen. I do not know.

I have little doubt, however, that were he to seek again to sue the first named defendant, that defendant may well find itself on

significantly stronger ground in seeking the said relief.