Supreme Court dismisses appeal striking out claims to set aside final consent order and grant possession.

THE SUPREME COURT

[Appeal No: 324/2010]

Denham J.

Hardiman J.

Macken J.

BETWEEN/

MICHAEL CHARALAMBOUS

PLAINTIFF/APPELLANT

AND

MARGARET NAGLE

DEFENDANT/RESPONDENT

Judgment delivered on the 31st day of March, 2011 by Denham J.

1. This appeal is brought by Michael Charalambous, the plaintiff/appellant, referred to as "the appellant", in proceedings which are part

of a series of litigation brought by him in relation to a consent order of the Circuit Court made on the 5th February, 2008.

2. These, and other proceedings, have been brought by the appellant against Margaret Nagle, the defendant/respondent, referred to

as "the respondent", who, with her husband originally, leased a premises, on which stands The Avoca Inn, to the appellant.

Order of the High Court

3. The appellant appeals the order of the High Court (Murphy J.) given ex tempore on the 28th July, 2010, and perfected on the 29th

July, 2010. The High Court ordered that the following claims of the appellant contained in his statement of claim be struck out:-

(a) the claim for an order setting aside the Order of the Circuit Court (Judge O'Sullivan) of the 5th day of February 2008

made on consent

(b) the claim for an order setting aside the Orders of the High Court of the 7th day of April 2008 and of the 25th day of

May 2008

(c) the claim for an order setting aside what is claimed as "the purported settlement of the above proceedings"

(d) the claim for an order remitting "the said proceedings" to the Circuit Court for hearing

(e) the claim for an order granting [the appellant] possession of the Avoca Inn, Avoca, Co. Wicklow with attachments and

appurtenances thereto

(f) the claim for specific performance of the Lease dated the 16th of April 2002

(g) the claim for an order staying enforcement of the aforesaid orders of the Circuit Court and High Court.

A claim for an Isaac Wunder order was refused. It was ordered that the appellant pay to the respondent the costs of the motion

(limited to paragraph 1), when taxed and ascertained.

Grounds of Appeal

4. The appellant filed a notice of appeal stating that he would rely on the following grounds of appeal:-

That the Learned High Court Judge misdirected himself in law and upon the evidence and upon the weight and balance of the

evidence in:

(i) Striking out the claims of the appellant contained in his Statement of Claim, and set out in the order of the learned

High Court Judge dated the 28th day of July 2010.

(ii) Determining that the matter was Res Judicata, when never have the true issues between the parties been opened and

argued before the Court.

(iii) Refusing the appellant an opportunity to prepare and file a replying affidavit to the affidavit of Oisin Murphy who was

not a party to the proceedings.

(iv) Relying mainly on the submissions made on behalf of and the evidence contained in the affidavit of Oisin Murphy who

was not a party to the proceedings.

(v) Refusing to allow the appellant to cross-examine Mr. Murphy on the sworn evidence contained in his affidavit filed on

the 23rd day of July 2010.

(vi) In relying on an unsigned note of terms of consent purportedly agreed between the parties.

(vii) On failing to hear oral evidence to determine:-

a. If terms were agreed between the parties,

b. That the appellant was not agreeable to terms, and informed his solicitor (Mr. Murphy) of this and also informed

the solicitor for the defendant (Mr. Joyce).

c. On what sums if any were owing once the overpayment was allowed as if none were owing the court had no

jurisdiction to act to accept the consent terms

d. What advice Oisin Murphy gave to the appellant and what instructions were given by the appellant to Mr.

Murphy.

(viii) Failing to address and consider the conflicting evidence on behalf of the respondent, therefore failing to consider the

bone fides of the respondent.

(ix) Failing to adequately take account of what was at stake for the appellant, viz his reputation and livelihood.

(x) Such further and other grounds as may be advanced at the hearing of the appeal herein.

History

5.1 These proceedings are rooted in an ejectment civil bill, brought by the respondent, dated the 2nd October, 2006. That civil bill set

out that by indenture of lease dated 16th April, 2002, the respondent and her late husband Michael Nagle, as joint tenants, demised

the public house known as The Avoca Inn, in Avoca, Co. Wicklow, and the ordinary seven day publican's licence attached thereto, to

the appellant for 21 years from the 15th November, 2001, to the 16th November, 2022, subject to rents and covenants and

conditions. Upon the death of her husband on the 5th October, 2005, the respondent, by right of survivorship, became entitled to the

demised premises subject to and with the benefit of the said lease.

5.2 By the lease the appellant covenanted to pay during the first period of 156 weeks of the term weekly rent of €761.84 and

thereafter a weekly rent not less than that sum as provided in the lease. It was provided that rent should be paid to the landlord

every Thursday. It was also provided that if the rent were unpaid for 14 days it should be lawful for the respondent to enter the

premises and to repossess the same, without prejudice to any right of action or remedy.

5.3 The respondent served a notice of forfeiture for rent due. According to the civil bill the sum of €27,396 was due. By the lease it

was provided that the appellant should in May, 2006 apply for a tax clearance certificate necessary to renew the intoxicating liquor

licence. It was claimed that in breach of covenant the appellant did not provide the tax clearance certificate in time. In the lease the

appellant covenanted to pay and discharge all rates and taxes which were or might be charged on the premises. The appellant was

notified that the rates for 2005 and 2006 were not paid in full.

5.4 (a) The respondent claimed recovery of possession of the demised premises, the property of the respondent, which was being

wrongfully withheld by the appellant; and,

(b) the sum of €19,025 rent, plus €8,371 rent, being €27,396 in total;

(c) mesne rates due by the appellant at the rate of €761 per week;

(d) damages for default by the appellant in failing to pay the rates levied;

(e) interest; and

(f) costs of the proceedings.

6. The appellant delivered a defence on the 12th January, 2007. The appellant denied that he was in debt to the respondent and

claimed that he had overpaid the rent. He claimed that the tax clearance certificate was furnished to the respondent on the 15th

September, 2006, and that the licence was renewed on the 12th October, 2006. The appellant denied any failure to pay rent or

rates, or that he was liable to the respondent for any amounts or damages. The appellant counterclaimed for an overpayment.

7. The matter came before the Circuit Court, Judge Terence O'Sullivan, at Bray on the 5th February, 2008. On that date the appellant

was represented by solicitor, Oisin Murphy, then of the office of Farrell & Co., Solicitors.

8. The order of the Circuit Court of the 5th February, 2008 provides:-

"The DEFENDANT/(appellant) having been duly served with the Civil Bill herein and the matter coming before the Court on this day on

Notice of Trial dated the 30th day of April 2007 of the Plaintiff/(respondent) WHEREUPON AND ON READING the Civil Bill and the

further pleadings filed herein AND ON HEARING from Patrick Geraghty S.C., (instructed by W.R. Joyce & Co., Solicitors, of 18 Main

Street, Arklow) for the Plaintiff/(respondent)and Oisin Murphy, Solicitor, (of Farrell & Co., Solicitors, of North Great George's Street,

Dublin 1) on behalf of the Defendant/(appellant) that the following Decree and Orders could be granted and made upon consent

BY CONSENT:

THE COURT DOTH ORDER that the Plaintiff/(respondent)do recover from the Defendant/(appellant)possession of ALL

THAT public house known as the Avoca Inn, at Avoca, County Wicklow, together with the outbuildings, yard and

car park attached thereto, and the appurtenances thereto belonging and the ordinary seven day publican's licence

attached thereto, being the hereditaments and premises described at Paragraph 1 of the Indorsement of Claim to

the Civil Bill herein AND THE COURT DOTH ORDER that the Defendant/(appellant) do pay the

Plaintiff's/(respondent's)costs of the proceedings, including all reserved costs, and a certificate for Senior Counsel,

said costs to be taxed in default of agreement, AND THE COURT DOTH GRANT a stay on the Order on the terms

agreed the parties that is to say:

a. the Defendant/(appellant)forthwith renews the intoxicating liquor licence relating to the said public house, and

b. each weekly instalment of £761.84 is paid to the Plaintiff's/(respondent's) Solicitor promptly on the Thursday of

each week the first such payment to be made on the 7th February 2008 and in default of any one payment

execution to issue immediately, and

c. arrears of rent and mesne rates amounting to €57.655.00 (credit having been given for the sum of €23.100.00)

and the costs of the proceedings are all paid in full within four months

but that in default of any one of the foregoing execution should issue immediately

AND THE COURT DOTH GRANT liberty to apply in the event of costs not being taxed or agreed before the four months

(The words in italics have been added to clarify the relationship to the parties in this appeal)

9. The appellant filed a notice of appeal to the High Court on the 13th February, 2008, appealing the consent order.

10. On the 26th May, 2008, the appellant's appeal from the order of the Circuit Court dated the 5th February, 2008, came on for

hearing. The High Court (Edwards J.) refused the appeal on the grounds that it was an order made on consent, that no appeal lay,

and ordered that:- (a) the appeal do stand refused; (b) the order of the Circuit Court is affirmed; and (c) the respondent do recover

against the appellant the costs of the appeal.

11. There were proceedings also in the District Court. The District Court made an order on the 16th July, 2008, transferring to the

respondent the intoxicating liquor licence in respect of The Avoca Inn, Avoca, Co. Wicklow.

12. The appellant objected and appealed that order to the Circuit Court. On the 30th October, 2008, the Circuit Court, Judge Michael

White, made the following order:-

(a) an order dismissing the objections of the appellant to the transfer, grant and renewal of the licence to the

respondent;

(b) an order affirming the order of the District Court dated the 16th July 2008, transferring the licence to the respondent;

(c) an order affirming the order of the District Court dated the 16th July, 2008, granting the respondent a seven day

publican's on-licence for The Avoca Inn;

(d) an order affirming the order of the District Court dated the 24th September, 2008, disallowing the objections of the

appellant and granting the respondent a renewal of the licence; and

(e) an order granting the respondent an Isaac Wunder order in respect of any further applications by the appellant with

regard to the licensing of the premises.

13. The appellant then filed a notice of appeal to the High Court on Circuit, appealing the judgment of the Circuit Court of the 30th

October, 2008 for transferral of the licence and a renewal of the licence by notice dated 4th November, 2008.

14. The respondent brought a notice of motion on the 10th June, 2009, to the Circuit Court, grounded on the affidavit of Richard

Joyce. The respondent sought:-

(a) an order re-entering the proceedings;

(b) an order striking out the appellant's notice of appeal dated 4th November, 2008;

(c) an order restraining the appellant from issuing any further appeals in the matter;

(d) an order, if necessary, prohibiting the appellant from issuing any further proceedings against the respondent or

otherwise interfering with the sale of the premises; and

(e) such further or other order as the Court deems fit.

15. In that affidavit, deposed on the 22nd April, 2009, Mr. Joyce set out the history of the proceedings: the consent order of the

Circuit Court on the 5th February, 2008, ordering the payment of €57,000 by the appellant to the respondent, and a decree of

possession with a stay of four months; how the appellant appealed that consent order, which appeal was refused by the High Court;

that the order for possession was executed on the 2nd July, 2008; that the respondent applied to the District Court to have the

licence transferred, that the appellant objected in the District Court to the transfer of that licence to the respondent on the 16th

July, 2008, which he then appealed; and then brought a further application to the District Court; the appeal was dismissed by the

Circuit Court, Judge White, who also directed an Isaac Wunder order; he deposed that the appellant has brought fresh plenary

proceedings in the High Court in relation to the previous litigation and orders. Mr. Joyce pointed out the age of the respondent, that

she is a widow, that she cannot manage a public house herself and that she wishes to sell it, that she is on social welfare, and he

gave his opinion that the appellant will continue to make court applications which frustrate the respondent's attempts to sell the

premises.

High Court proceedings

16. By plenary summons dated 2nd October, 2009, the appellant sought reliefs including (a) the setting aside of the order of the

Circuit Court of the 5th February, 2008; (b) the setting aside of the purported settlement of the above proceedings; (c) an order, if

necessary, remitting the matter to the Circuit Court; (d) damages for breach of contract, negligence and breach of duty; (e)

restitution of monies; (f) an order granting the appellant possession of The Avoca Inn; (g) an order for specific performance of the

lease agreement; and (h) if necessary, an order staying enforcement of the order of the Circuit Court of the 5th February, 2008 and

the orders of the High Court of the 7th April, 2008, and the 26th May, 2008.

17. The appellant filed a statement of claim on the 19th February, 2010, which revisits the consent order of 5th February, 2008; and

states that the appellant was unable to make the payments referred to in the consent order, seeks to set aside the consent order;

and makes a claim for damages.

18. A defence was filed on behalf of the respondent on the 4th May, 2010. It was stated that the order of 5th February, 2008 was

made by consent. It was specifically pleaded that:-

(i) as the terms of settlement were being announced verbally by Counsel for the [appellant] to the Court, the [appellant]

herein intervened personally to tell Judge O'Sullivan that he did not need as long a stay as four months to pay the arrears

of rent, as he, the [appellant], had a property in Cyprus from which he would be able to realise the necessary monies;

(ii) Judge O'Sullivan asked the [appellant] in person if he agreed that the order was being made on consent, to which the

[appellant] stated he did agree;

(iii) Judge O'Sullivan addressed the [appellant] in person and stressed to him that the payment of the weekly sum of

€761.84 had to be paid on the Thursday of each week and that if he failed to make any one such payment, the order for

possession would issue against him. The [appellant] responded to the effect that he understood that this was so.

Notice of Motion

19. On the 14th May, 2010, the respondent filed a notice of motion seeking an order that the following claims in the statement of

claim be struck out as frivolous and vexatious, namely:-

(a) the claim for an order setting aside the Order of the Circuit Court of 5th February, 2008, made on consent;

(b) the claim for an order setting aside the orders of the High Court of the 7th April, 2008, and the 25th May, 2008;

(c) the claim for an order setting aside what is claimed as "the purported settlement of the above proceedings";

(d) the claim for an order remitting "the said proceedings" to the Circuit Court for hearing;

(e) the claim for an order granting the appellant possession of The Avoca Inn;

(f) the claim for specific performance of the lease of the 16th April, 2002; and

(g) the claim for an order staying enforcement of the aforesaid orders of the Circuit Court and High Court.

The respondent also sought an order that , as a condition of his continuing the further prosecution of the remainder of his claims in

this action, the appellant first discharge the amounts due on foot of the order of the Circuit Court of the 5th February, 2008, being

arrears of rent and mesne rates of €57,655.00 and taxed costs amounting to €66,873.12 being the costs of the order of the Circuit

Court and orders of the High Court of the 7th April, 2008, and the 25th May, 2008, and that until such amounts are paid to the

respondent, all further proceedings by the appellant in this action be stayed.

20. The respondent, Margaret Nagle, deposed an affidavit on the 12th March, 2010 in support of the motion, and setting out the

history of the litigation.

21. An opposing affidavit was deposed by Angela Farrell, solicitor, of Farrell & Co. She stated that she was instructed in the

ejectment proceedings against the respondent. She gave some details about a proposed sale, and the appellant's change of solicitor

for a certain purpose. Ms. Farrell deposed that her assistant Mr. Oisin Murphy, who represented the appellant, had instructions to

come off record, and that he ignored her instructions, and she made certain allegations against Mr. Murphy. Mr. Oisin Murphy filed an

affidavit setting out his version of events, the negotiations, the settlement, the consent order. He deposed:-

"I wholly and utterly reject the account given by Ms. Farrell as to the conduct of the Charalambous file and my involvement in it as

a work of fiction which is untrue and deliberately so."

The appellant also deposed an affidavit.

22. The motion was heard by the High Court and Murphy J. delivered an ex tempore judgment, the order being made on the 28th July,

2010 and perfected on the 29th July, 2010. That order is set out at the commencement of this judgment.

Decision

23. Against that judgment and order of the High Court the appellant has appealed. The grounds of appeal have been set out in detail

earlier in the judgment. At the hearing of the appeal Ms. Angela Farrell, solicitor, appeared on behalf of the appellant, and Mr.

Geraghty, S.C. appeared for the respondent.

24. These proceedings arise from an order made on consent by the Circuit Court on the 5th February, 2008.

25. On the date of the consent order there was evidence that the appellant was legally represented, consented to the order, and

envisaged that he could pay the sums ordered.

26. Problems in this case arose in that the appellant had changed his solicitor from Farrell & Co. prior to the hearing in the Circuit

Court, due to other matters, but Farrell & Co. remained on record for the civil bill. On the date of the hearing Mr. Oisin Murphy, then

of Farrell & Co., represented the appellant. There was affidavit evidence from Ms. Angela Farrell in which she made allegations against

Mr. Murphy. In the High Court Mr. Murphy, who was not a party, filed an affidavit denying those allegations. This dispute between the

solicitors may require to be addressed elsewhere. However, the fact is that Farrell & Co. were on record as the appellant's solicitors

on the 5th February, 2008, and Mr. Oisin Murphy then of that office attended and represented their client, the appellant.

27. On behalf of the appellant several matters were raised before this Court on the appeal. However, the kernel of the case is that it

relates to a consent order of the Circuit Court.

28. There were no grounds raised upon which to set aside the consent order on a basis recognised by law. The appellant has brought

several sets of proceedings subsequent to the order of the 5th February, 2008. However, there has been no claim of fraud.

29. These were final orders. Final orders are final and conclusive and may not be relitigated except in circumstances such as indicated

in Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M. 29. Such circumstances do not arise in this case.

30. The appellant has brought further proceedings in the High Court as described. The respondent brought a motion to strike out

parts of the statement of claim as vexatious. It is an appeal on this motion which is before the Court.

31. Arising out of the hearing of the motion in the High Court, the appellant complains inter alia that he was not permitted to file a

replying affidavit to that of Mr. Oisin Murphy, or to have oral evidence. But this aspect of the case arose because Ms. Angela Farrell

had deposed an extensive affidavit making allegations against Mr. Murphy, in his conduct of representing the appellant. Any such

replying or contentious evidence, by affidavit or orally, is not for this appeal, although it may be for another time. Nothing turns on

the matter for the appellant, as it is clear that he was legally represented on the day.

32. The appellant claims that he did not authorise his solicitor, Mr. Oisin Murphy, to settle, that he gave instructions not to settle,

and notwithstanding the case was settled. However, it is clear that there were negotiations, that there were discussions during the

day, that ultimately the matter came back to Court, the trial judge addressed the situation carefully, the appellant was in court with

his legal representative, was informed of the terms of the settlement, and the consent order was made.

33. I rely on the formal order of the Circuit Court of the 5th February, 2008. Although there is a note of terms, unsigned, which Mr.

Geraghty, S.C. informed this Court was in his handwriting, that is not a determining factor. The terms were dealt with in open court,

by the parties with their legal representatives, and were considered carefully by the Circuit Court judge before he made the order.

There is a clear consent order of the Circuit Court upon which the matter rests.

34. The High Court held that it was satisfied that Mr. Oisin Murphy had implied authority to conclude the negotiations, that his

instructions were not withdrawn. On the basis of oral and affidavit evidence before the High Court, the learned High Court judge was

satisfied on the balance of probabilities that the appellant had consented to the order being made.

35. The learned High Court judge acted within jurisdiction and there was no error in law.

36. In all the circumstances, having considered carefully the documents, and submissions, both written and oral, I am satisfied that

the motion to strike out portions of the statement of claim as being vexatious is well founded. I would dismiss the appeal.

37. This case, based on a consent order, together with others brought by the appellant, has been in the courts for years. The

respondent has been negatively affected by these years of litigation by the appellant. I would ask the parties to address the issue as

to whether an Isaac Wunder order is appropriate in all the circumstances.