Court dismisses claim against Cunningham Group and Mr. Cunningham based on res judicata from prior judgment.

Neutral Citation Number: [2010] IEHC 34

THE HIGH COURT

2003 9018 P

BETWEEN

MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED,

SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED

AND BLONDON PROPERTIES LIMITED

PLAINTIFFS

AND

FIRST ACTIVE PLC AND RAY JACKSON

AND BY ORDER

BERNARD DUFFY

DEFENDANTS

AND LINKED PROCEEDINGS

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

1. Introduction

1.1 Further issues continue to arise in these complex and protracted proceedings. In a judgment delivered on the 6th March, 2009,

Moorview Development & Ors v. First Active Plc & Ors [2009] IEHC 214, (the “main judgment”) I came to the conclusion, for the

reasons set out in that judgment, that, with certain immaterial exceptions, each of the questions which were then at trial (the “main

trial”) were properly the subject of a non-suit.

1.2 For the reasons noted in the main judgment some of the issues in these linked proceedings were left over for further hearing.

Indeed, some of those issues, not dealt with in the main judgment, have since been the subject of determination. However, for the

purposes of the question which I now have to answer, it is important to note that two of the matters which were, by agreement of

the parties and the court, not dealt with at the time of the main trial, were the counterclaim in Case A and the claim in Case D (using

the same lettering as is referred to in the main judgment and, in particular, the first schedule thereto). The counterclaim in Case A

involves a claim by the first named defendant (“First Active”) against certain of the plaintiffs (“the Cunningham Group”) for monies

said to be due by certain companies within the Cunningham Group to First Active. Case D involves a claim by First Active against Mr.

Brian Cunningham (“Mr. Cunningham”) personally on foot of guarantees.

1.3 Subsequent to delivering the main judgment, the remaining issues in these linked proceedings were the subject of further case

management with a view to bringing same to trial. It was agreed that the counterclaim in Case A and the claim in Case D could

conveniently be tried together. However, in the course of preparation for the trial of those matters, it became clear that it was the

intention of the Cunningham Group and Mr. Cunningham to seek to re-open, at the hearing of those cases, certain questions which

had already been addressed in the main judgment. First Active contended that such a course of action was not permissible. It was

agreed that a preliminary question should be tried as to whether it was, in fact, open to the Cunningham Group and Mr. Cunningham

to raise as matters of defence (either to the counterclaim or in relation to Mr. Cunningham’s personal liability on the relevant

guarantees) issues that were already the subject of the main judgment.

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

Cunningham Group and Mr. Cunningham.

2. The Case Made

2.1 The principal contention made on behalf of the Cunningham Group and Mr. Cunningham is to the effect that, properly construed,

the term “non-suit” does not denote a finding on the merits such as would give rise to the application of the principle of res judicata.

I will return to the relevant authorities in due course. However, reference is made to certain authorities from the latter part of the

nineteenth century (that is before the Judicature Acts 1877-1888, and the Rules and Orders connected with same, were enacted and

the largely equivalent English regime was adopted) from which it does appear that the term “non-suit”, at that time, was used to

describe a method by which proceedings could come to an end without a final determination by the court concerned on the issues

raised in the relevant proceedings. In part, it would appear that the non-suit procedure was a means whereby a plaintiff could, in

effect, withdraw his proceedings without placing a barrier in the way of being able to recommence the relevant proceedings. It would

also appear that there may have been a form of imposed non-suit whereby the court could require a plaintiff to enter a non-suit in

circumstances where the court was not satisfied that the plaintiff had established a prima facie case, thus bringing the proceedings

to an end.

2.2 It must, of course, be recalled that very many proceedings, in those days, were conducted before a judge and jury, so that the

role of the judge in such cases was to determine whether the proceedings could ultimately be left to the jury.

2.3 In essence, the case made on behalf of the Cunningham Group and Mr. Cunningham is that the position identified in the

nineteenth century United Kingdom jurisprudence remains applicable in this jurisdiction today (at least in so far as an “imposed” non-

suit is concerned) so that, it is said, the consequences of a party obtaining a non-suit at the end of the plaintiff’s case does not

absolutely debar the plaintiff concerned from raising any issues which were then before the court, on a subsequent occasion. Before

going on to analyse that proposition it is next appropriate to briefly set out First Active’s response.

3. First Active’s Response

3.1 First Active accepts that, up to the passage of the Judicature Acts, there was distinction between a non-suit on the one hand

and a dismissal of a plaintiffs claim on the other hand such that, at that time, a non-suit did not amount to a verdict or determination

sufficient to debar the plaintiff concerned from raising again any of the issues which were before the court. However, it was argued

on behalf of First Active that the form of non-suit that is referred to in the Victorian jurisprudence ceased to exist as a result of

certain measures adopted in the course of the enactment of the Judicature Acts (which, it will be recalled, were pursued in a similar

parallel fashion applicable, respectively, to Ireland on the one hand and England and Wales on the other hand) so that, it is said, the

term “non-suit” no longer describes the nineteenth century procedure to which the relevant jurisprudence refers.

3.2 Rather, it is said, a non-suit in the Victorian form ceased to exist as a result of the passage of the Judicature Acts. However, it is

said that the term continued to be used in this jurisdiction interchangeably with the term direction, such that there was no material

difference between the term “non-suit” and “direction” both of which, it is said, amount to a dismissal on the merits such that any

issues raised in the proceedings which were properly the subject of a non-suit, can be said to have been determined against the

plaintiff concerned and be the subject, therefore, of the application of the doctrine of res judicata.

3.3 It is clear, therefore, that there is no dispute but that the relevant nineteenth century jurisprudence, which was relied on by the

Cunningham Group and Mr. Cunningham, did once represent the law in this jurisdiction. For those reasons it will not be necessary to

go into it in any great detail. The real issue between the parties is as to whether that jurisprudence has any continuing relevance in

the early years of the twenty first century. Before going on to those questions I should, however, briefly refer to one aspect of the

procedural history of the hearing before me, for it has a bearing on the way in which I intend to approach this judgment.

4. Relevant Procedural History

4.1 Towards the end of the hearing, I intimated to counsel for the Cunningham Group and Mr. Cunningham that it had not been my

personal experience, as either a barrister practicing in this jurisdiction for over thirty years or sitting as a judge for five years, that

practitioners had made any distinction between a direction and a non-suit. I further suggested that it may well have been the case

that some practitioners (and, indeed, some judges) felt that the term non-suit was more appropriate in the case of a trial which was

being conducted without a jury, having regard to the fact that the term “direction” can be a somewhat misleading term in

circumstances where there is no jury to be directed.

4.2 Arising out of those comments counsel for the Cunningham Group and Mr. Cunningham asked for an opportunity to file further

written submissions, directed solely to that question, in the event that it was considered prudent to do so. This course of action was

agreed to be subject to the right of First Active to file replying submissions. Both such submissions were filed. I will, in due course,

refer both to the submissions and some of the cases referred to in same. I now return to the nineteenth century non-suit.

5. The Non-Suit in History

5.1 A non-suit was a right given to a plaintiff to withdraw his claim and that term subsequently extended to the power of a court to

order a non-suit, effectively requiring a plaintiff to withdraw his claim. Historically, whether the non-suit was applied for by the

plaintiff or ordered by a court without the plaintiff’s consent, no res judicata was created by a non-suit at common law and a plaintiff

was, thereafter, free to bring fresh proceedings raising the same issue.

5.2 In this respect, the Cunningham Group and Mr. Cunningham referred to Outhwaite v. Hudson (1852) 7 Ex 380, which concerned an

appeal against a refusal to allow a plaintiff to enter a non-suit. Parke B. held that the relevant plaintiff had a common law right to be

non-suited and “thereby to reserve to himself the power of bringing a fresh action for the same subject matter.”

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

p. 332:-

“A non-suit at common law was nothing more than a declaration by the Court that the plaintiff had made default in

appearing at the trial to prosecute his suit. The entry on the postea was that “the said AB being solemnly called

comes not, nor does he further prosecute his suit against the said CD.” It decided nothing as regard the matters in

dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, and this he might

have done either in the same or different court, subject only to having the proceedings stayed till he had paid the

costs taxed against him on the non-suit.”

5.4 Further reference was made to a number of authorities examining the nature of non-suit, including whether or not a

previous unsuccessful application by the plaintiff was a bar to a fresh application if the dismissal of the first case had

been in the nature of a non-suit, see R. v. Machen [1849]14 Q.B. 74 and Clack v. Arthur’s Engineering [1959] 2 Q.B. 211.

In R. v. Machen, a renewed application was allowed by the court on the basis that the statutory provision under

consideration was not one which, in the view of the court, intended a final adjudication on the issue. In Re May [1885] 28

Ch. D. 516, the court of appeal held that a petition which had previously been dismissed could not be reheard. Brett M.R.

rejected the idea that the dismissal was like a non-suit which he said was “in truth no judgment at all”.

5.5 The rules of procedure for the English High Court, attached to the Supreme Court of Judicature Act 1873, and

subsequent measures have been interpreted as providing for the abolition of a plaintiff’s right to chose to be non-suited.

The relevant non-suit provisions were replaced by discontinuance, which can only take place on application of the plaintiff

and does not itself preclude the bringing of a fresh action. In Ernst and Young v. Butte Mining Plc [1996] 1 All E.R. 623,

Robert Walker L.J. confirmed that discontinuance had superseded procedures such as non-suit or voluntary dismissal of a

bill in chancery.

5.6 In this jurisdiction, a plaintiff’s right to choose to be non-suited also appears to have been abolished by O. 26, r. 1, in

the Rules of the Supreme Court (Ireland) 1905. Likewise in Smyth v. Tunney [2009] IESC 5, which concerned an appeal

against an order of this Court allowing withdrawal of a notice of discontinuance, Finnegan J. allowed the appeal having

reviewed the English authorities, such as Ernst and Young v. Butte Mining Plc, to the effect that the rules as to

discontinuance provided a complete code and that the right to elect to be non-suited had disappeared.

5.7 The historical position does, therefore, seem clear. Prior to the Judicature Acts there was, undoubtedly, a form of

order then called a non-suit which had the effect of bringing the proceedings to an end, and which was no bar to

proceedings based on the same issues being recommenced. That form of order could be obtained on the application of the

plaintiff or as a result of the court imposing a non-suit on a plaintiff on the application of the relevant defendant.

6. Subsequent Developments

6.1 The initial change came about as a result of parallel measures in Ireland and England with the Irish measure being

found in O. 40, r. 6 of the Rules of the Superior Courts of 1877 which, like its English counterpart O. 41, r. 6, provided

that a non-suit had the effect of a judgment on the merits. Those Rules were repealed and not re-enacted. However, at

the same time the Rules in both England and Ireland made provision for a discontinuance. There is ample authority, not

least in Smyth v. Tunney, for the proposition that discontinuance represents a complete code and that the right of a

plaintiff to elect to be non-suited was abolished. There is no dispute between the parties, therefore, but that what one

might term an elective non-suit (i.e. a non-suit which a plaintiff elects for) such as formerly existed was abolished by the

measures introduced at the time of the Judicature Acts and has been replaced by discontinuance.

6.2 Counsel for the Cunningham Group and Mr. Cunningham argues, however, that there was another type of non-suit

which has not, in substance, been abolished. It is argued that the form of compulsory non-suit, as a result of which a

defendant obtained an order from the court requiring the relevant plaintiff to enter a non-suit, was a different species of

non-suit and that that form of imposed non-suit has not been abolished. It is said by counsel for the Cunningham Group

and Mr. Cunningham, therefore, that a non-suit of that type in this jurisdiction remains the same as such a non-suit prior

to the Judicature Acts and thus does not give rise to a judgment on the merits sufficient to invoke the doctrine of res

judicata, leaving a plaintiff free to raise issues on which he has been non-suited in fresh proceedings.

7. Analysis

7.1 As far back as 1942, the Supreme Court, in White v. Spendlove [1942] I.R. 224, followed the English decision of Fox v.

Star Newspaper Co. [1898]1 Q.B. 636 and [1900] A.C. 19. Murnaghan J. (who was part of the majority in White v.

Spendlove) approved, at p. 239, of a passage from the judgment of the Earl of Halsbury in Fox at p. 20 where the

following is stated:-

“The substance is that when it once comes to Court and when the plaintiff offers no support to his action there

must be a verdict for the defendant.”

7.2 It is also relevant to note that A.L. Smith L. J. in the Court of Appeal in Fox said the following:-

“It is quite true that since 1883 the term “non-suit” has been used in some cases instead of “judgment for the

defendants”, as appears from the book; but in my opinion there is now no such thing as a non-suit in the proper

sense of the term.” (See p. 637)

7.3 Later the same judge said, on p. 638:-

“I think that O. XLI, r. 6 of 1875 has been advisably omitted from the Rules of 1883 because there is really no such

thing now as a judgment of non-suit, and it was found that the matter with which the rule dealt is provided for by

the rule as to discontinuance, namely O. XXVI, r. 1 which provides that, after a certain stage, the plaintiff cannot

without leave of the High Court discontinue the action.”

7.4 It is clear, therefore, that Fox was considered as authority for the proposition that the various measures adopted in

sequence in England had the net affect of abolishing the existence of the non-suit. It is equally clear that the Irish Courts

considered that the identical Irish Rules had had the same affect. There is nothing, in my view, in any of those decisions

to say that a non-suit obtained on the application of a defendant had, in some mysterious way, survived what is said, in

express terms, to have been the end of the non-suit or in the words of A.L. Smyth L.J. “there is now no such thing as a

non-suit in the proper sense of the term”.

7.5 The question might be asked as to what basis there was for continuing to entertain an application by a defendant at

the end of the plaintiff’s case which sought to bring that case to an end. The fact remains that courts have considered

themselves to have had such a jurisdiction at all material times since. That the practice in this jurisdiction was not

necessarily the same in that regard as in England is also clear. For example, in Fletcher v. London and North Western Rail

Company [1892] 1 Q.B. 122, it was held that a trial judge had no right to non-suit a plaintiff without his consent on his

counsel’s opening statement. As pointed out in a previous ruling by me in this case, the Irish Courts have always

considered that they had a jurisdiction to dismiss on the plaintiff’s opening in an appropriate case, albeit that the relevant

jurisdiction was one to be sparingly exercised. Moorview Developments v. First Active Plc [2008] IEHC 211.

7.6 In my view, the modern approach of the courts in this jurisdiction to applications which arise either on the opening or

at the close of the plaintiff’s case or, indeed, in cases which remain tried by jury, at the close of the evidence as a

whole, stems from the inherent jurisdiction of the court to order its procedure for the purposes of preventing injustice.

The jurisdiction to dismiss on the basis of the proceedings being bound to fail, as first identified in Barry v. Buckley [1989]

I.R. 306, is an example of that inherent jurisdiction. It would be strange indeed if the court had a jurisdiction to dismiss

proceedings long before trial on the basis that they were bound to fail, which jurisdiction derived from its inherent

jurisdiction, but could not, at a subsequent stage in the proceedings, when it became clear that the case was bound to

fail, not also exercise a similar jurisdiction. It is on that basis that the entitlement to dismiss on the opening, or at the

close of the plaintiff’s case, or at the end of all of the evidence, arises. If, at any stage, it becomes apparent that the

plaintiff cannot succeed, and if there are no countervailing factors which might lead to a different view being taken, then

the justice of the case requires that the proceedings be brought to an end.

7.7 There can be little doubt but that the term non-suit has been used in many cases in the period since the Judicature

Acts. However, it seems to me that it is clear that, in its modern sense, there is no meaningful distinction between a non-

suit, a direction, or a dismissal of the plaintiff’s case at the close of the plaintiff’s evidence. An analysis of the many

judgments referred to in the course of the hearing before me suggests that the terms are used interchangeably. In the

course of the additional submissions filed by both sides, to which I have already referred, many further cases were cited.

I do not believe that there is any consistent use of terminology to be found in those cases such as would suggest a clear

distinction between a non-suit and a direction.

7.8 It was said on behalf of the Cunningham Group and Mr. Cunningham that a distinction of substance can be found

between an application at the end of the plaintiff’s case in circumstances where the defendant indicates that it reserves

its right to go into evidence, and a case where the defendant gives an undertaking not to go into evidence, which

distinction, it is said, justifies the court taking a different approach as to whether the consequences of the application

being successful operate as a barrier to further proceedings. I cannot see any basis for that suggestion.

7.9 The distinction between the two types of application at the close of the plaintiff’s case, which was the subject of

analysis by the Supreme Court in Hetherington v. Ultra Tyre Services Ltd [1993] 2. I. R. 535, is a logical and purely

procedural distinction. Where a defendant reserves a right to go into evidence, then there are obvious reasons why the

defendant’s application should be assessed on the basis of considering whether the plaintiff has made out a prima facie

case. The obligation on a plaintiff is to put forward evidence which, if true, would warrant the plaintiff succeeding. It is

only if the plaintiff fails to meet that threshold, that the proceedings should be brought to an end. To invite a court,

where it may well hear further evidence in the event of refusing the defendant’s application, to nonetheless approach the

plaintiff’s evidence on a balance of probabilities basis is a recipe for disaster.

7.10 However, where it is clear that there will be no further evidence, then, in substance, the case is at an end subject

to the submissions of the parties and it is obvious that the court should then consider the case on the basis of the

balance of probabilities, for it will not have any other evidential material to take into account. In the former case there is

nothing, of course, at all unsatisfactory in the court indicating, at the close of the plaintiff’s case, that the plaintiff has

made out a prima facie case, but in the nonetheless rejecting that case when the court has had the opportunity of

hearing the defendant’s evidence. There will be many cases where the plaintiff will put forward evidence which might well

be persuasive in the absence of equally or more persuasive evidence from the other side. A plaintiff’s apparently credible

account of how an accident occurred might well be accepted until a more credible account is given by, perhaps, an

independent witness called by the defendants.

7.11 On the other hand to invite the court to give one view, on the balance of probabilities, having heard only the

plaintiff’s evidence and then, in the event that the defendant’s application failed, to be required to give a second view as

to the same facts having heard additional evidence and applying the same test, would give rise to very obvious

difficulties.

7.12 The distinction made in Hetherington is, therefore, based purely on procedural considerations as to how the rest of

the case is going to run and does not, in my view, offer any basis for suggesting that there is or should be a difference in

substance between the nature of the applications made or, thus, in the consequences which flow from a successful

application. For the reasons which I have sought to analyse, I am not satisfied that, even at a technical level, there is

any legitimate basis for the contention that the Victorian form of imposed non-suit has survived into modern times.

Rather, it seems to me to be clear that the term non-suit has come to be used to refer to an ordinary application made at

the end of the plaintiffs’ case for what is, in substance, a dismissal on the merits on the basis that the plaintiff has failed

to discharge the onus of proof on it. I should not conclude without, however, dealing with two further matters. The first

concerns the logic of there being a distinction of the type which is urged on behalf of the Cunningham Group and Mr.

Cunningham. I turn to that question.

8. What is the Logic of the Distinction

8.1 In order that a plaintiff suffer a non-suit at the close of its case, it is necessary for the court to conclude that it has

not put forward evidence to discharge the onus of proof on it. It seems to me that such a finding amounts to a

determination on the merits. The plaintiff has had access to the court. The plaintiff has had access to any pre-trial

procedures that may be available to it (or if it has not availed of same it can only be through its own neglect). The

plaintiff has been able to present any admissible evidence available to it and can, indeed, in an appropriate case, in

accordance with the rules, subpoena witnesses (including witnesses, if necessary, who might be colloquially referred to as

defendant’s witnesses). The plaintiff is entitled, in the event that the relevant defendant indicates that it may go into

evidence, to have the court assess its case on the facts on a basis very favourable to it. In all those circumstances it

seems to me that logic points in only one direction. The decision made by the court in favour of a defendant in such

circumstances is a decision on the merits. It is a decision that the plaintiff has not made out any case. It would be to fly

in the face of logic, in my view, to take any other view.

8.2 If there were clear and binding authority which required that, notwithstanding the above, the decision of the court on

such an application did not amount to a decision on the merits giving rise to res judicata then I would, of course, follow

it. However, in the absence of any such clear and binding authority, it seems to me that very considerable additional

weight is lent to the technical analysis of the position in which I have already engaged as a result of the illogicality of

adopting any other view. Finally, it seems to me that I should turn to the way in which the application in the main hearing

was moved and dealt with.

9. The Application in the Main Hearing

9.1 It is important to emphasise that the application made on behalf of First Active at the main hearing was described in

its written submissions as an application for a dismissal although it is true to say that, as is the case in many of the

authorities, the terms “dismissal” and “non-suit” were used interchangeably.

9.2 I should also draw attention to the fact that, at para. 5.13 of the main judgment, I referred, in an analysis of the

decision of the Supreme Court in Hanafin v. Minister for Environment [1996] 2 I.R. 321, to the fact that the test in

Hetherington and O’Toole v. Heavey [1993] 2 I.R. 544, derived from the role of judge in respect of a trial where facts are

to be determined by a jury. I noted that the case was not permitted to go to the jury, and would be dismissed by

direction, where the evidence is not such as would permit a jury properly directed to reasonably find for the plaintiff. I

went on in the same paragraph to refer to the fact that it equally followed that in a case being tried without a jury a

non-suit should be allowed. It seems to me that the terms directions, dismissal and non-suit were, as appear in many of

the authorities, used interchangeably by me in the main judgment in this very case. It is also clear, from para. 5.21, that I

used the term non-suit as being applicable both in the case of a defendant who indicated an intention to go into evidence

and in respect of a defendant who took the opposite position.

9.3 No point was made at the main hearing on behalf of the Cunningham Group which sought to make any distinction

between what is now said to be a non-suit properly so called and a direction. Two possibilities arise. It is possible that

the Cunningham Group had not averted to the argument now made at the time of the main trial. Having allowed the terms

non-suit, dismissal and direction to be used in an interchangeable fashion in the course of the hearing without raising any

query about it, it would seem to me to amount to an impermissible act of opportunism for the Cunningham Group to now

seek to place reliance on a distinction which was manifestly not clear to either the parties or the court in the course of

the hearing. If, on the other hand, the Cunningham Group and Mr. Cunningham were, in fact, aware of the possibility of

making the distinction which is now argued for, and nonetheless allowed the terms to which I have referred to be used

interchangeably, silence in those circumstances would appear to me to be tantamount to an abuse of process.

9.4 In either event, I would not be satisfied to allow the Cunningham Group or Mr. Cunningham to place any reliance on

the distinction which they argue for, even if I had been satisfied that it existed. Their silence at a time when they ought

or must have been aware that no distinction was being made either by their opponents or the court would now, in my

view, debar them from placing any reliance on the distinction even if it existed.

9.5 Finally, I should note that it was clear that Mr. Cunningham was the prime instructing and moving party behind each

of the plaintiffs in the Moorview case and I did not understand any argument to be put forward to the effect that, if the

findings in the main judgment were binding, they would equally bind Mr. Cunningham as well as the companies within the

Cunningham Group.

10. Conclusions

10.1 I am, therefore, satisfied that any matters determined in the main judgment are binding as against the Cunningham

Group and Mr. Cunningham personally in both the counterclaim proceedings in Case A and in respect of the guarantee

proceedings, being Case D.

10.2 It follows that no evidence can be tendered on behalf of the Cunningham Group or Mr. Cunningham and no argument

can be raised which infringes the res judicata rule by reference to relevant findings and determinations in the main

judgment.