Supreme Court dismisses appeal striking out vexatious proceedings by lay litigant based on false ward of court claim.

THE SUPREME COURT

[Record No: 288/2006]

Denham J.

Kearns J.

Macken J.

Between/

Carmel Rose O'Reilly McCabe

Plaintiff/Appellant

and

The Minister for Justice, Equality and Law Reform, and Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court

and Minor)

Defendants/Respondents

Judgment delivered the 7th day of July, 2009 by Denham J.

1. This is an appeal brought by a lay litigant, Carmel Rose O'Reilly McCabe, the plaintiff/appellant, referred to in this judgment as "the

appellant", from the order and judgment of the High Court given on the 29th day of June, 2006.

2. There were three motions before the High Court.

3. The first motion was filed on behalf of the Minister for Justice, "the Minister", on the 15th February, 2005, seeking an order

dismissing the action brought by the appellant on the grounds that the appellant had no reasonable action against the Minister and/or

that the appellant's claim must fail against the Minister; also an order was sought dismissing the plaintiff's action on the grounds that

the proceedings are vexatious and/or that they constitute an abuse of the process of the Court; also, an order was sought

restraining the appellant from instituting further proceedings without first obtaining the leave of the High Court.

4. The second motion was filed on behalf of Patrick Cusack Smith & Co., the second named defendants, "the solicitors". The second

motion sought an order striking out the appellant's action on the grounds that it was clearly unsustainable, was bound to fail, was

frivolous and/or vexatious, and was an abuse of the process of the courts. Further, an order was sought striking out the appellant's

claim on the ground that it disclosed no reasonable cause of action and/or was frivolous and/or vexatious. Also, an order was sought

restraining the appellant from instituting any further proceedings against the solicitors without leave of the High Court.

5. The third motion was brought by the appellant seeking an order striking out the defence of the Minister for failure to make

discovery of documents pursuant to order of the High Court dated the 26th April, 2005, and for an order striking out the defence of

the solicitors for having refused and neglected to make discovery of documents in terms of the order of the High Court of the 26th

April, 2005. An order for directions was also sought as to the trial of the issue of facts having regard to the fraudulent concealment

alleged against the defendants.

6. The proceedings to which the three motions refer were brought by the appellant against the Minister and the solicitors. In the

plenary summons the appellant's claim is for negligence and for the wrongful birth of five children.

7. In the statement of claim the appellant claims that the Minister and the solicitors owed the appellant and her five children a duty

of care to disclose the legal status of Thomas McCabe who suffered post traumatic organic brain damage following a road traffic

accident in 1965 whereupon, it is claimed, he was taken into wardship as a minor. The appellant claims that the defendants were

negligent in not disclosing Thomas McCabe's legal status and that consequently they are in breach of the duty which they owed to

the appellant and her five children. The appellant claims that her marriage to Thomas McCabe is a nullity. The appellant claims further

that the defendants have caused the appellant loss and damage in that, it is claimed, she is unable to enforce any of her marital

rights as there was an undisclosed legal impediment to the marriage; that the consequences to the appellant of her void marriage

were foreseeable and that such a marriage to a minor who has been taken into wardship is prohibited by the legislation relating to

wards of court and minors in Ireland.

The appellant claims that Thomas McCabe was involved in a road traffic accident in 1965 when he suffered organic brain damage and

developed schizophrenia as a result. It was stated that his claim for personal injuries was settled upon an order of compromise in

1967; that the solicitors were appointed guardians and assumed control of his person and estate; that in 1967 the solicitors produced

documents to Thomas McCabe purporting to be his personal injuries settlement which detailed minor physical injuries and a settlement

of approximately £2,000; that Thomas McCabe was not aware of proceedings initiated by the defendants on his behalf; and that he

was abandoned by his legal guardians and the funds paid into Court for his benefit were misappropriated. The appellant stated that on

the 23rd September, 1972 she went through a service of marriage with Thomas McCabe and then resided with him in County Meath.

During the years 1973 to 1980 the appellant gave birth to five children. In 1981 the solicitors acted for Thomas McCabe in the

transfer of property comprising the family home. The appellant was not party to the transaction. The solicitors wrote that "they were

aware of their own knowledge that the provisions in the Family Home Protection Act did not apply". The appellant wishes to proceed

with the matter on behalf of her children. The appellant points out that schizophrenia is an inherited disease and that two of the

children have inherited the disease from their father. She claims that the risk of inheriting this disease was foreseeable, and that the

injury to the children was caused by the defendants' negligence. In 1992 the appellant separated from Thomas McCabe and

commenced matrimonial proceedings. She maintained four of her children through University. She claims she was unable to avail of her

legal entitlement to maintenance because of Thomas McCabe's legal status. The appellant obtained a decree nisi in matrimonial

proceedings in 2004. She claims she is unable to proceed any further with the matter as there is a legal impediment on the marriage

certificate. She claims loss and damage.

8. A defence was filed on behalf of the Minister. It was claimed that on the 5th March, 1992, the appellant commenced an action

against the Minister [The High Court Record No. 1992/1640P] which was the same or substantially the same as this action, and that

on the 22nd July, 1992, the High Court found that the appellant had no reasonable cause of action against the Minister and ordered

that the proceedings be stayed. It is claimed, in these proceedings, that the appellant is estopped from maintaining her claim against

the Minister. It was further claimed that the plenary summons and the statement of claim disclosed no reasonable cause of action

against the Minster; that the claim was frivolous and/or vexatious and/or an abuse of process. In addition, it is claimed that the case

is statute barred, that the appellant has no standing on behalf of her adult children. Furthermore, it is denied that Thomas McCabe

was taken into wardship as a minor or at all; and the claim is traversed.

9. A defence was filed on behalf of the solicitors. It is pleaded that the claim is statute barred, that there had been inordinate and

inexcusable delay and that no cause of action known to law was disclosed. It is denied that the solicitors were at any material time

the agent of Thomas McCabe, or that Thomas McCabe was ever a ward of court, and the claim is traversed.

The High Court

10. The High Court referred to previous proceedings brought by the appellant against Dolan Cosgrave and Company [1991] 6351P

relating to Folio 3639, upon which Lynch J. delivered judgment on the 14th October, 1991.

11. On the motion brought by the Minister, the High Court ordered (i) that the appellant's action be dismissed on the grounds that the

appellant had no reasonable cause of action against the Minister and/or that the appellant's claim must fail against the Minister; (ii)

that the action be dismissed on the grounds that the proceedings are vexatious and/or that the proceedings constitute an abuse of

the court; (iii) that the appellant be restrained from making any further application in the matter on the institution of further

proceedings without leave of the High Court; and (iv) that the appellant pay to the Minister his costs of the motion dated the 15th

day of February, 2005 when taxed and ascertained.

12. On the motion brought by the solicitors, the High Court ordered that (i) the appellant's claim be dismissed on the grounds that the

appellant's action is bound to fail; that it is frivolous and/or vexatious; that it is an abuse of process; (ii) that the appellant be

restrained from instituting any further proceedings against the solicitors without the leave of the High Court; and (iii) that the

appellant pay to the solicitors the costs of the motion dated the 31st day of March, 2005 and of these proceedings when taxed and

ascertained.

Wardship

13. The key issue before the High Court was the appellant's claim that Thomas Patrick Joseph McCabe, referred to as "Thomas

McCabe", was a ward of court. On this issue, having reviewed the evidence before the Court, the learned High Court judge found as a

matter of fact:-

"I am satisfied from the evidence of the Registrar of Titles, Mr. Fitzpatrick, Mr. Dalton, Registrar of the Office of Wards of

Court and Neil Doherty, subsequently Registrar, in a comprehensive affidavit that Thomas McCabe was not made a ward

of the High Court in 1965 or at any time thereafter. Therefore, no issue in relation to any possible duty of disclosure on

the part of the first or second named defendant, his servant or agent arise. I am satisfied that there is no evidence

whatever that the discovery is incomplete or that any documents have been suppressed.

These proceedings would seem to be the third time the [appellant] has alleged that the first and second named defendant, its agents

or servant were negligent and/or in breach of duty in not disclosing the alleged legal status of Thomas McCabe. Substantially the

same cause of action was raised in the [appellant's] action against the Minister for Justice, Ireland and the Attorney General ((1992)

no. 1640P) and in the proceedings in Northern Ireland already referred to. The allegation that Thomas Ward was made a ward of court

in 1965 and that this fact was not disclosed to the [appellant], resulting in her suffering loss, was held to comprise no reasonable

cause of action by this Court. Moreover, in the proceedings in Northern Ireland, the High Court indicated that no cause of action in

relation to the facts alleged could be identified.

The [appellant's] pleadings and her averments are accordingly, incapable of constituting a cause of action against the first named

defendant.

It follows, that Mr. McCabe has not the legal disability contended by the plaintiff. Indeed, subsequent to his accident in 1965, he has

been the co-plaintiff with Mrs. McCabe in two of the proceedings ((1984) No. 3620P and Circuit Court (E38 of 1991)).

It is clear that all three sets of proceedings initiated by the [appellant] have arisen by virtue of her and her husband’s belief that

Thomas McCabe was made a ward of the High Court in 1965. On a number of previous occasions, including in two previous sets of

litigation, the first named defendant has attempted, without success, to correct this misunderstanding on the part of the [appellant].

However, the [appellant] continues to make grave allegations against both defendants on the basis of her mistaken belief. This Court

finds that these allegations are unfounded."

Family Home

14. The appellant also raised issues in relation to the family home. The High Court found:-

"The [appellant]has made allegations that certain transfers to and by Mr. McCabe and, indeed, a bank charge and

subsequent discharge were void, fraudulent and based on forgeries in that her name was, unknown to her, indicated

thereon and that the provisions of the Family Home Protection Act were not complied with.

The court is not satisfied that there is evidence to substantiate the allegation of fraud or forgery. No evidence was

adduced in relation to the [appellant's] purported signature.

The court is unable to come to a conclusion in relation to the Family Home Protection Act as there is no proof nor clear

indication given as to whether the transfer and charge involved a family home.

The court notes that in many of the transfers it was certified by the second named defendant that the provisions of the

Family Home Protection Act did not apply. The matter of the transfer in relation to the folios had, of course, been referred

to in the letter of Mr. Fitzpatrick, the Registrar of Titles.

The court considers that the making of serious allegations against a party without any or any adequate foundation for

same is an abuse of process."

Jurisdiction

15. The court has jurisdiction to strike out, stay, or dismiss proceedings under Order 19 r. 28 of the Rules of the Superior Courts,

1986, on the grounds that it discloses no reasonable cause of action, or that it is frivolous or vexatious. In addition, the court has

inherent jurisdiction to strike out proceedings where no cause of action is disclosed or the claim is frivolous or vexatious, which

jurisdiction is to prevent the abuse of process.

In exercising this jurisdiction, insofar as there is any conflict of fact, a conflict should be resolved in favour of the appellant. However,

the nature of the conflicted fact is relevant. The High Court pointed out that the appellant has averred that her husband was a ward

of court. However, her averments are the height of her case. The learned High Court judge held:-

"It is clear to this Court that the fact as to whether a person is or was a ward of court is a matter of public record. An

official in the office responsible for maintaining that public record has made averments regarding the relevant matter of

public record, and no evidence has been put forward by the [appellant] to challenge or contradict those averments, even

on a prima facie basis. I agree with counsel for the first defendant that the facts regarding the status of the plaintiff’s

husband as a ward of court are not “reasonably disputable”, and the evidence on this matter is in reality “undisputed

evidence”. In the circumstances the [appellant's] claim should be struck out as clearly unsustainable and bound to fail."

Statute of Limitations

16. As to the statute of limitations, the High Court pointed out that the Court had already determined in the proceedings 1984 No.

3620 that the appellant's claim was statute barred. The High Court held:-

"The plaintiff’s claim relates to Wardship in 1966/67; to her marriage in 1972 and to transfers made to and by her husband

and to a bank charge and discharge made in the 1970’s and 1980 the court has found that there is no evidence of fraud,

which not pleaded with particularity, (much less any ground to substantiate any criminal offence). Accordingly neither

sections 44 or 71 of the Statute of Limitations would seem to apply."

Consequently, the High Court held that it was not necessary to direct a trial on this issue.

Appellant's Motion

17. As to the appellant's motion, the High Court held:-

"The applications to the court necessitated a consideration of the [appellant's] claim. This is not the trial of that action

notwithstanding the findings of the court which are based solely on the affidavits in this and in related actions. The

findings of fact are not controverted merely by assertions.

The court considers that there are no grounds, in the circumstances of the above findings, to accede to the [appellant's]

application to strike out the defences for want of compliance with the order for discovery. No privilege is being claimed by

the Minister. No indication is made of any deficiency of documents save those alleged to relate to what the court has

found to be non-existent wardship proceedings.

The court consequently refuses to direct the trial of issues of fact as it has not been established that there was any

fraudulent or other concealment with regard to the status of the [appellant's] husband nor was there any evidence

sufficient to substantiate any criminal activity. The court does not make any order that the papers be diverted to the

Office of the Director of Public Prosecutions."

Conclusion on defendant's motions

18. The High Court concluded on the defendants' motion as follows:-

"The court has jurisdiction to strike out an action to avoid injustice having balanced the constitutional right of access to

the courts guaranteed by Article 40.3 and the right of defendants not to have to litigate actions which show no cause or

to relitigate actions which have been already determined. The court takes into account that such jurisdiction is exercised

sparingly. On the basis of pleadings and on the evidence on affidavit relating to the issues, the facts are not reasonably

in dispute. The court considers that this is a case having regard to the findings by the court, it should make the orders

sought by the first and second defendant."

19. Appeal

The appellant has filed extensive grounds of appeal relating to the evidence before the High Court, submitting that the High Court

erred on facts and law. In particular, the appellant submitted that the trial judge erred in a number of his findings of fact, in not

striking out the defendants' defence, in failing to make an order for further and better discovery, in failing to adjudicate on the validity

of documents which the appellant contended were fraudulent, in holding that there were no disputed issues of fact or evidence in the

matter and that accordingly that it was a suitable matter for striking out, and in demonstrating bias.

20. The Law

The law relevant to the first two motions is clear, and was stated by McCracken J. in Fay v. Tegral Pipes Limited [2005] 2 I.R. 261.

At p.265 McCracken J. stated:-

"There is no serious dispute between the parties as to the principles applicable to motions of this nature. It is accepted

that there are two bases upon which such an application may be brought. The first is pursuant to the provisions of Order

19 Rule 28 of the Rules of the Superior Courts which reads:-

'The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action

or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or

vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as

may be just.'

In addition to this provision, the Court has an inherent jurisdiction to stay, strike-out or dismiss pleadings where no cause

of action is disclosed or if the claim is frivolous or vexatious. This was explained by Costello J. in Barry v. Buckley [1981]

I.R. 306 at p. 308 where he said:-

'But, apart from Order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to

exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating

to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979)

at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its

jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings

are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail;

per Buckley L.J. in Goodson v. Grierson at p. 765.

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

injustice.

I am satisfied that the learned trial judge identified the correct principles of law and then applied them to the motions in this case.

Submissions

21. Written and oral submissions were before the Court from the parties. I have considered carefully both the written and oral

submissions.

Decision

22. The kernel of this case relates to the issue of wardship. The appellant has claimed that the Minster and the solicitors owed to her

and her five children a duty of care to disclose the legal status of her husband, Thomas McCabe, who, she claims, was taken into

wardship as a minor after a road traffic accident in 1965. She claimed that the defendants were negligent in not disclosing his status

and that she and her children have suffered loss and damage as a consequence.

Over the years, the Minister has replied to this claim and referred to the Registrar of Wards of Court who, on a number of occasions,

has confirmed in writing that Thomas McCabe is not, nor ever has been, a ward of court.

The appellant has brought previous proceedings making similar claims. On the 5th March, 1992 the appellant brought proceedings

against the Minister, Ireland and the Attorney General, making a similar claim as in this case and raising the same issues. On the 22nd

July, 1992 the High Court held that the appellant had no reasonable cause of action against the defendants and ordered the

proceedings stayed. In 1995 the appellant started a further action against the defendants in the High Court of Northern Ireland,

which held that it did not have jurisdiction, but that even if it did the appellant's statement of claim showed no cause of action.

These proceedings were commenced on the 14th April, 2004.

23. In the High Court, in a very careful judgment, Murphy J. considered the proceedings in this and earlier cases and the evidence

before him. He relied on the affidavit sworn by Noel Doherty, Registrar of the Office of Wards of Court. Noel Doherty deposed on the

10th October, 2005:-

"I say that, as appears from the General Endorsement of Claim on the Plenary Summons herein, the Plaintiff alleges that

Mr Thomas Joseph Patrick McCabe was taken into Wardship as a minor following a road traffic accident in 1965. In this

respect, I say that I was requested by Ms Pamela Hanley of the Chief State Solicitors Office to examine the books,

records and files of the Office of the Wards of Court with a view to ascertaining whether or not Mr Thomas Joseph Patrick

McCabe is now or ever was a Ward of Court in this jurisdiction.

I confirm that I carried out the relevant enquiries and examined the books, records and files of the Wards of Court Office

back to the year 1924 and that I can confirm that Mr Thomas Joseph Patrick McCabe is not now and never was a Ward of

Court in this jurisdiction.

From my examination of the books, records and files of the Wards of the Court Office, it is clear that a similar enquiry in

relation to Mr Thomas Joseph Patrick McCabe's legal status was raised by an official in the Department of Justice in or

about the year of 1995. Thus, it appears that an official in the Department of Justice wrote to the Office of the Wards of

Court regarding the allegation that Mr Thomas Joseph Patrick McCabe had been taken into Wardship following a road

traffic accident in 1965. The then Registrar of the Office of Wards of Court confirmed, by letter dated the 7th June 1995,

that Mr Thomas Joseph Patrick McCabe was not and, had not been at any time, a Ward of Court."

24. There was clear evidence upon which the learned trial judge could and did rest his decision to strike out the appellant's action.

25. It is quite clear that there has been an abuse of the court process by the appellant over many years. It is a matter of public

record as to whether a person is or is not a ward of court. A Registrar of the Office of Wards of Court has deposed that Thomas

McCabe is not now nor ever has been a ward of court. This evidence has been made available to the appellant for many years. This

fact is at the core of the appellant's claim. The appellant's assertion that Thomas McCabe is and was a ward of court does not

establish a conflict of fact in the circumstances. It is clear that the appellant has a mistaken belief that Thomas McCabe was made a

ward of court. The Minister has, in previous litigation, shown that this was not so. Yet the appellant has persisted with her claim.

Legal Document

26. An aspect of this case shows the type of misunderstanding which may arise by a lay litigant, which can propel her or him into

protracted litigation. The appellant referred to an order in the Case No. 650P, the personal injury case, between Thomas McCabe and

James McPhillips, before the Master. That states that:

"Upon Application of the Solicitor for the Defendant and on reading the Consent herein dated the 10th day of February,

1967, signed by the Parties and their respective Solicitors

IT IS ORDERED that the said Consent be received and made a Rule of Court and be filed with and deemed to be part of

this order. And accordingly IT IS ORDERED that all further proceedings in this Action be stayed upon the terms set out in

the said Consent."

The appellant appears to have a misconception about this order, and especially of the words "Rule of Court". This is not evidence that

Thomas McCabe was made a ward of court. It is simply a Rule of Court.

Visits to Wards of Court Office

27. The appellant also described visits to the Office of the Wards of Court. In her written submissions she described the following:-

"4.12 During the course of the hearing for this issue, [the appellant] presented at the Office for Wards of Court in January

1985. A civil servant at that Office produced a file and confirmed that Thomas McCabe was a Ward of Court. She

identified the members of his family. She informed me that he was unmarried and that his next of kin was his brother,

Michael McCabe.

4.13 The following day I presented again at the Wards of Court Office in the presence of a witness and was informed that

this Ward had died in St Davnet's Hospital in Monaghan."

The appellant knew that her husband was alive. She told this Court that at that time he was living at home. The appellant brought a

witness with her to the Office of the Wards of Court on this latter date. This witness was called Bridget Kierce. A statement was filed

from her in which she stated that on an undisclosed date in February 1985:-

"I was in the company of Mrs Carmel McCabe [she describes being at the Wards of Court Office with a person Mrs McCabe

earlier described as the Master's Registrar]

I clearly heard the following, Thomas Patrick Joseph McCabe, Lisduff, Kells, in County Meath, I further heard, it is not your

husband, that man is deceased."

While the appellant explained that she went into shock, she also knew her husband was alive.

Wardship Proceedings

28. There are formal and exacting procedures which must be complied with, and which are under the direction of the President of the

High Court, before a person may be made a ward of court. Usually a petitioner asks the High Court to hold an inquiry into whether a

person is of unsound mind and whether he is capable of managing his person and property. The petition is usually made by a member

of the family. The person making the application has to swear an affidavit witnessed by a solicitor. The opinions of two doctors must

be filed with the petition. The President of the High Court then decides whether or not to hold an inquiry. If an inquiry is ordered the

proposed ward is examined by a doctor under the order of the High Court.

There is not a single document which refers to Thomas McCabe as a ward of court. There is no evidence of even an application to

make him a ward of court. Indeed, all the evidence is to the contrary, that he is not and never has been a ward of court.

I believe that part of the appellant's misconception on this matter arises from the order settling Thomas McCabe's personal injury

action, which has been referred to above, and the reference to "Rule of Court". When a person is under eighteen years of age, under

current law, and is awarded damages, the money is paid into Court and invested on his behalf until he is eighteen years of age. Such

persons are not wards of court.

Thomas McCabe was in a traffic accident in 1965, suffered injury and received a settlement of approximately £2,000. In 1965 he was

20 years old. At that time a "minor" was a person under 21. The plenary summons was issued in 1966. The settlement order was made

on the 16th February 1967. Clearly Thomas McCabe was over 21 at that stage, and was no longer a minor.

The appellant did not know Thomas McCabe at that time. She told the Court that she met him in 1971 and married him in 1972.

29. The proceedings brought by the appellant against the Minister fail to disclose any reasonable cause of action, are vexatious, and

an abuse of process. Further, the claims of the appellant have no possibility of succeeding. The learned High Court judge correctly

stated and applied the law, including the necessity to apply this jurisdiction sparingly, but decided on the evidence that the

proceedings should be struck out. I would dismiss the appeal and affirm the judgment of the High Court.

30. In relation to the appellant's claim against the solicitors, the appellant claims that the solicitors were appointed guardians and

assumed control of Thomas McCabe's person and estate when Thomas McCabe was made a ward of court. As he was never a ward of

court this assertion is unreasonable and falls. The matter was clearly and correctly determined by the High Court. I would affirm the

judgment of the High Court in relation to the motion of the solicitor's also.

31. As to the appellant's motion seeking to strike out the defences of the Minister and the solicitors for failing to make discovery, I

would also affirm the judgment and order of the High Court.

It is clear that an appropriate discovery was made. It is often difficult for a lay litigant to understand legal documents, a fact

illustrated by this appeal.

32. I would also affirm the judgment of the High Court as to the claims in relation to the family home.

Isaac Wunder order

33. It is clear from the history of these and other proceedings that the appellant has sought to bring a series of actions on the same

issues. While the right of access to the courts is an important constitutional right, it is not absolute. The Court must also protect the

rights of defendants, the finality of litigation, the resources of the courts, and fair procedures.

In all the circumstances of the case I would order that the appellant may not commence proceedings against the defendants or either

of them without the leave of the High Court.

A Tragedy

34. This case brings before the Court a tragedy. The appellant has had a misconception for decades that Thomas McCabe was a ward

of court. She has been told on many occasions that he neither is, nor ever was, a ward of court. That is a finding of fact of the High

Court, affirmed by this Court on this appeal. All the claims brought by the appellant are grounded on her assertion that Thomas

McCabe was a ward of court. Consequently, they all must fall. It is a tragedy for all concerned that the appellant has spent so many

years pursuing her misconception through the courts.