IEHC 483 — IEHC 483 — High Court
Synthèse de l'arrêt (Faits & Considérants)
Généré par l'IATHE HIGH COURT [Record No. 2024/2777 HP] [2026] IEHC 483 BETWEEN PATRICK MARTIN PLAINTIFF AND NOEL MARTIN, NERA INVESTMENTS LIMITED AND THE MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH DEFENDANTS JUDGMENT of Ms Justice Bolger dated the 14th day of July2026 1. This is the first named defendant's application to dismiss the proceedings as disclosing no reasonable cause of action, amounting to an...
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Généré par l'IATexte intégral de la décision — IEHC 483
THE HIGH COURT [Record No. 2024/2777 HP] [2026] IEHC 483
BETWEEN
PATRICK MARTIN
PLAINTIFF
AND
NOEL MARTIN, NERA INVESTMENTS LIMITED AND THE MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH
DEFENDANTS
JUDGMENT of Ms Justice Bolger dated the 14th day of July2026
1. This is the first named defendant's application to dismiss the proceedings as
disclosing no reasonable cause of action, amounting to an abuse of process, bound
to fail and/or no reasonable chance of success. The plaintiff's substantive claim
relates to what he says is his 50% interest in a commercial property, which the first
named defendant says was transferred to him by agreement. For the reasons set out
below, I am refusing this application.
The plaintiff’s claim
2. The plaintiff issued a plenary summons on 29 May 2024 and filed a statement
of claim on 9 August 2024. His claim is relatively simple. He pleads that he and the
first named defendant are the full owners as tenants in common of the East End Hotel,
Main Street, Portarlington in County Laois (hereinafter referred to as "the property") 2
and that he and the first named defendant each own 50% of the property. He asserts
that he has been wrongly excluded from the property and that the second named
defendant claims an entitlement to possession and/or occupation on foot of an
agreement with the first named defendant, and the third named defendant claims an
entitlement to possession to of and/or occupation of the property on foot of an
agreement with the second named defendant. The plaintiff seeks a declaration that
he and the first named defendant are full owners as tenants in common of the property.
In the course of this application, he submitted that this is not an equitable remedy but
simply reflects the current situation as per the Register of Leaseholders for the County
of Laois. He seeks three separate injunctive reliefs, three separate heads of
damages, a statutory partition order and a statutory order for sale and distribution of
the proceeds between him and the first named defendant.
3. The first mention of the distribution of partnership assets including the property,
is made in the first named defendant's defence filed on 17 July 2025. The first named
defendant pleads that he is the sole owner of the property pursuant to an agreement
of dissolution of the partnership between him and the plaintiff. The remainder of his
defence is essentially a traverse of the plaintiff’s pleas.
4. Both the plaintiff and the first named defendant have sworn detailed and lengthy
affidavits in this application, three by the plaintiff and four by the first named
defendant. There is also a short affidavit by Paul Martin, a brother of the first named
defendant who had some dealings with the parties in relation to their property
business. The fact that the affidavits and exhibits run to over 1,000 pages gives a
flavour of the extent of the factual and legal disputes that exist between the parties.
Background
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5. While much is in dispute between the parties, what is agreed is that the plaintiff
and the first named defendant were in partnership together in a property business over
a number of years that prospered until the property crash of 2008. By 2021, they had
decided to dissolve the partnership and split the assets between them. It is agreed
that the partnership was dissolved but the plaintiff disputes that the agreement to
divide the property ever advanced beyond various draft agreements that were never
executed. The plaintiff says he took certain steps, including in relation to the property,
in the expectation that the assets would be divided as had been discussed in
negotiations. However, he contends that in the absence of a final agreement, he
remains a co-tenant of the property.
6. A letter from the charge holder for many of the partnership properties was
exhibited, confirming that the property was vested solely in the first named defendant
as agreed between the parties.
7. A point of contention between the parties is whether there was a binding
agreement to transfer the plaintiff's interest in the property to the first named
defendant. The first named defendant does not dispute the absence of an executed
agreement, although he exhibits in his grounding affidavit what he calls a copy of the
"final dissolution agreement" sent by email on 26 June 2021. The email he exhibits
from the plaintiff's then lawyer states that the author is attaching "a draft Deed of
Partition for the properties held by Pat and Noel". The first named defendant exhibits
a number of subsequent draft dissolution agreements and correspondence from June,
July and August 2023, which differ from what the plaintiff avers was the final dissolution
agreement. None of those agreements were ever signed. There are a number of
letters from both parties’ solicitors referring to them as, inter alia, a proposed exchange
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of property (for example, a letter from a former solicitor to one of the parties of 8 June
2023).
8. The first named defendant says that the later version of the dissolution
agreements exhibited relates to a different agreement whereby the plaintiff agreed to
transfer a different property to him. The first named defendant makes no reference to
the consideration, if any, that he was to provide to the plaintiff for that alleged transfer.
9. The first named defendant avers that the plaintiff acted on the terms of the
dissolution agreement including by transferring the rent on another property that was
to be transferred to the plaintiff, to the plaintiff's own bank account.
10. As well as relying on the absence of an executed agreement between the
parties, the first named defendant relies heavily on statements made in writing by the
plaintiff to Revenue and NAMA to the effect that the property was to be retained solely
by the first named defendant. Among the written statements to that effect made by
the plaintiff is a statutory declaration sworn by the plaintiff on 23 December 2024 for
NAMA. In the notes to the plaintiff’s sworn statement, he stated in relation to, inter
alia, the property, that there were:-
“…a number of properties that formed part of the now defunct Pat and Noel
Martin partnership that are to be transferred to Noel Martin under the Deed of
Partition (which I have previously supplied to NAMA). The completion of this
partition agreement has proved to be very troublesome due to the difficulties in
communications between myself and Noel Martin. As such I intend to
commence legal proceedings to ensure the windup of the partnership takes
place.”
11. The plaintiff contends that he always kept NAMA appraised of the status of the
distribution of the assets. In relation to his sworn statement to Revenue, he says he
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made those statements on the belief that the negotiated split of the assets would take
place.
The first named defendant's case
12. The first named defendant says that the conclusive and final nature of the
agreement has been confirmed by the evidence. The legal consequences of the
plaintiff’s statements to Revenue and NAMA that appear to be inconsistent with the
claims he makes in the within proceedings, is in effect an assertion that the plaintiff is
seeking equitable relief with unclean hands. The first named defendant's case is set
out at para. 22 of his written submissions as follows;
“The Court, in assessing the nature of the within proceedings, and whether they
constitute an abuse of process and ought to be dismissed on that basis, is entitled to
take account-by analogy- of the principle of ex turpi cause non oritur action, which
operates to prevent a litigant from obtaining a benefit for himself as a result of his
unlawful act.”
13. The first named defendant cites the decision of the Supreme Court in Quinn v
IBRC [2016] 1 IR 1 where the Supreme Court stated
“A party should not, in accordance with [the principle of ex turpi causa non oritur
actio] be entitled to come to court and seek to enforce a transaction which is
tainted with illegality in some form".
The court went on to say, in reliance on the minority judgment of Lord Goff in the
House of Lords decision in Tinsley v Milligan [1994] 1 AC 340, that:-
"…Once it is determined the policy requires that contracts which are deemed
unlawful by reference to a particular statutory provision are to be regarded as
unenforceable, no assessment of the merits of the individual case arises."
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14. The first named defendant argues on the basis of that case law that the
commission of a wrongful and, in particular, an illegal act will operate to bar a litigant
from obtaining any benefit or damages associated with that wrong.
The plaintiff's case
15. The plaintiff disputes the existence of any binding agreement and relies on what
he says were the changing versions of the draft agreement throughout 2023, well after
the first named defendant avers to having reached a final agreement on the division
of the partnership assets as far back as 2021. The plaintiff excuses his statements to
Revenue and NAMA as based on a mistaken belief and, in any event, contends, as a
matter of law, that this cannot lead to a dismissal of his proceedings at this early stage
before discovery and direct and cross-examination at trial. He relies on the first named
defendant's demand for a waiver from the plaintiff in June 2023, which the plaintiff
refused to provide, as the reason why the first named defendant declined to execute
the agreement, though the first named defendant contends that that related to a
separate aspect of the property dealings between them, as referred to at paragraph 8
above.
The law
16. The court's jurisdiction pursuant to O. 19, r. 28 is well-established and not in
dispute here. The following propositions were set out by the plaintiff at para. 2.11 of
his written submissions and accepted by counsel for the first named defendant:
“Accordingly, the principles to be applied by the Court in the context of these
proceedings are, inter alia, as follows:
1. The burden of proof is on the First Named Defendant. (McAndrew v Salthill)
2. The jurisdiction to dismiss should be exercised sparingly. (Salthill)
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3. The Court can only engage in a very limited review of the evidence and merits.
(O’Malley and Keohane)
4. Disputed oral evidence cannot be relied upon by the First Named Defendant.
(Keohane)
5. Conflicts of fact must be resolved in favour of the plaintiff. (Kennedy)
6. The Plaintiff does not even need to establish a prima facie case, simply a
stateable case. (McAndrew) (Salthill)
7. Where evidence is submitted by the Plaintiff which, if accepted at trial, might
arguably lead to the Plaintiff succeeding, then that is an end of the matter.
(Keohane)
8. All that the Plaintiff needs to do is to put forward a credible basis for suggesting
that it may, at trial, be possible to establish the necessary facts to succeed.
(Keohane)
9. The Court must be confident that no matter what may arise on discovery or at
the trial of the action the proceedings will fail. (Supermacs)”
However, there is disagreement between the parties as to the legal consequences of
the plaintiff’s statements to Revenue and NAMA which the defendant says were
untrue.
17. The affidavit evidence before this Court on this application to dismiss is
extensive, with allegations, counter-allegations and contrary versions of events. That
alone renders it difficult to see how the first named defendant can establish such a
clear case that the plaintiff cannot establish even a stateable case that he may
succeed at trial, particularly given the court's obligation to take the facts the plaintiff
pleads at their highest, including what the plaintiff says is the conclusive nature of the
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Register, combined with the documentary evidence referring to various versions of
draft agreements on the distribution of the partnership assets.
18. However, the plaintiff made statements (including by way of statutory
declaration) to two separate state bodies, Revenue and NAMA, from which the
defendant says serious legal consequences flow. The case law cited to this Court,
particularly Quinn v IBRC, established that a court cannot and will not enforce an illegal
contract. Here, the basis for the plaintiff's substantive claim in his proceedings is that
he is currently registered as a tenant in common on the Register. No illegality is
claimed in relation to that. What is at issue in the first named defendant’s within
application is different, i.e. he says the plaintiff's actions have tainted his position such
that he is not entitled to secure a benefit from his wrongdoing by way of obtaining
equitable relief from this Court.
19. In effect, the first named defendant contends that the plaintiff comes to equity
with unclean hands, thereby denying the plaintiff the equitable relief that he
seeks. The first named defendant relies on the decision of McDonald J in Strategic
Land Investments Ltd v Kenny Galway Ltd [2025] IECA 65, where the court was critical
of the plaintiff's failure to offer any explanation for not advising the court of highly
relevant developments and the court therefore refused the interlocutory injunction that
had been sought. I distinguish that decision because (1) an explanation has been
provided by this plaintiff; and (2) this is a far more significant application to dismiss the
entire proceedings, than an interlocutory application for injunctive relief pending trial.
20. Even if there is a good basis to dismiss the plaintiff's equitable relief in the within
application, his claim for damages would remain as would his statutory claims for
partition and an order for sale and the current fact that he is identified on the Register
of Deeds as a co-owner of the property. There is an even more pressing reason why
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the plaintiff's allegedly unclean hands are not sufficient to permit this Court to dismiss
either his entire proceedings, or more narrowly, his claim for equitable relief, relating
to his rights to fair procedures. In English v O'Driscoll [2019] IECA 153, Peart J was
considering an appeal from an order of the High Court dismissing the plaintiff's claim
following trial. The plaintiff brought negligence proceedings and, at para. 13, Peart J
distinguished this from
"proceedings in which the plaintiff was seeking to have enforced against the
defendant's obligations on foot of a contract which is found to have a fraudulent
or other illegal component or purpose – see for example Quinn v IBRC…".
Peart J went on to raise the issue of fair procedures, where there had been no
evidence given to the High Court to establish that the plaintiff was party to a fraud nor
was it put to the plaintiff in cross-examination, thereby denying him the opportunity to
respond to those serious allegations. At para. 18, Peart J referred to the need to reach
conclusions in relation to fraud "based on the evidence given, or inferences properly
drawn from such evidence given at trial" (my emphasis). He concluded that there was
a want of fair procedures on how the trial had been conducted.
21. Here, the allegations against the plaintiff are set out on affidavit. That is not
evidence given or conclusions drawn from evidence given at trial, where the plaintiff
will be permitted to address the allegations in his evidence, the evidence of any other
witnesses he may call and by cross-examination of the first named defendant and/or
the first named defendant’s witnesses. The plaintiff will also have the benefit of
discovery, which is a relevant matter here as the plaintiff says he is missing a number
of documents as a result of a theft from his office (a fact independently corroborated
by another person's affidavit), and he believes that the first named defendant may
have copies of the documents which he intends to seek by way of discovery.
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22. A further fair procedure point arises in the context of the first named defendant's
unclean hands argument, from the recent decision of the Court of Appeal in O’Longain
v Burke [2025] IECA 148 to the effect that unclean hands might not deprive a plaintiff
of equitable relief, where a fundamental unfairness has occurred. In the High Court,
Dignam J refused the equitable relief sought because of the plaintiff's established
contempt of court. However, the Court of Appeal overturned that decision and the
plaintiff was granted injunctive relief in relation to the objective bias of a disciplinary
panel due to consider an appeal from the termination of his employment. Faherty J
stated, at para. 223;
“Accordingly, whilst I consider the appellant’s contempt no less egregious now
than it was when he was before Dignam J. in the 2022/4507P proceedings, as
I have said the distinguishing feature of the present case is the spectre of
unfairness that will hover over the appeal process before the DAP if the
appellant has to face that body as presently constituted given that he has made
out a case of a reasonable apprehension of objective bias.”
23. The plaintiff's conduct in Burke was described by Faherty J as "egregious" but
nevertheless, his contempt of court was not sufficient to deny the plaintiff equitable
relief in the context of his rights to fair procedures viz-a-viz an appeal from the
termination of his employment. The approach of Faherty J applies equally to the lack
of candour claimed by the first named defendant about the plaintiff’s pre-litigation
conduct. That conduct does not deny the plaintiff the right to pursue his litigation to
trial.
Conclusions
24. The evidence before this Court in this application to dismiss the proceedings
against the first named defendant has satisfied me that there is significant
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disagreement between the parties on the existence of a binding agreement to transfer
the plaintiff's interest in the property to the first named defendant. The steps taken by
the plaintiff in reliance on the outcome of the negotiations and before the execution of
any agreement and the plaintiff’s statements to Revenue and NAMA, are insufficient
to permit the proceedings to be dismissed at this stage. I therefore refuse the first
named defendant's application to dismiss the proceedings against him.
Indicative view on costs
25. My indicative view on costs is that the plaintiff, having succeeded in defending
the first named defendant's application to dismiss the proceedings at this stage, and
in accordance with s. 157 of the Legal Services Regulation Act 2015, is entitled to the
costs of this application to be adjudicated upon in default of agreement but that a stay
should be put on the execution of those costs pending the outcome of the
proceedings. I will put the matter in before me at 10.00 a.m. on 29 July 2026 for such
further submissions as the parties may wish to make in relation to costs and for such
final orders as may need to be made at this stage.
Counsel for the plaintiff: Neal Flynn BL
Counsel for the first named defendant: Bernard Dunleavy SC, Sean O’Sullivan BL
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