Supreme Court dismisses appeal striking out land claim as abuse of court process due to finality.

THE SUPREME COURT

[Appeal No: 274/2008]

Hardiman J.

O’Donnell J.

MacMenamin J.

Between/

Robert Ewing

Appellant

and

Ireland and the Attorney General

Respondents

Judgment of Mr. Justice John MacMenamin, delivered the 11th day of October, 2013

Introduction

1. This is an appeal from the order of the High Court (Dunne J.) wherein she directed that the proceedings herein be struck out

pursuant to Order 19 Rule 27 and Rule 28 of the Rules of the Superior Courts, and pursuant to the court’s inherent jurisdiction.

2. More than 30 years ago, the appellant’s father, William Arthur Pax Ewing, signed an agreement with his neighbour, Anthony Kelly,

for the sale of lands comprised in Folio 1347 in the Register of Freeholders County Galway. That agreement was dated the 6th

December, 1982. Almost one month later, on the 2nd January, 1983, William Ewing conveyed the lands. Anthony Kelly was registered

as owner thereof on the 2nd May, 1983. Since then, both the appellant, Robert Ewing, and his late father before him have been

involved in protracted litigation regarding that transaction and connected matters. This has culminated in this appeal by Robert Ewing.

3. Mr. Ewing is clearly deeply concerned about the events which took place in 1982 and 1983. He has been in correspondence with

various government agencies in Ireland, and in England, where he was born. He also sought to involve the European Court of Human

Rights in Strasbourg in the case.

4. The appellant presented his appeal to this Court in a most concise manner. He was informed at the outset of the appeal that the

Court had had the opportunity of reading the papers prior to the hearing. The fact that this Court and other courts have the

opportunity of reading documents beforehand ensures that no injustice is done to a litigant-in-person, as points are not always best

expressed in oral argument. Equally, for the same reason, the court allocates a specific period of time for oral submissions to both

appellant and respondent.

Background to these proceedings

5. In 1987 and 1988, five years after the transaction in question, Anthony Kelly initiated two sets of proceedings in the Galway Circuit

Court. He alleged the Ewings were trespassing on the disputed lands and had obstructed a right of way to which he, as purchaser,

claimed he was entitled.

6. For the purposes of those proceedings, William Ewing was advised by a firm of solicitors in the area, CP Crowley & Co. This firm was

later replaced by a second firm of solicitors, Egan, O’Reilly & Co.

7. Both sets of proceedings came on for hearing before the late Judge John Cassidy on the Western Circuit in May 1990. They were

part heard at the time of the judge’s unfortunate death. Then there was a further change of solicitor, as a result of which Messrs

Burke & Co. replaced Messrs Egan & Co. as the Ewings’ solicitors. Ultimately, the matter came on for hearing before His Honour Judge

Harvey Kenny on the 12th June, 1996. By then, 14 years had elapsed since the original agreement of the 6th December, 1982.

8. At the Circuit Court hearing, William Ewing was represented by senior and junior counsel. Robert Ewing was named as co-defendant

with his father, but there was no appearance on his behalf. Robert Ewing blames one of his former solicitors for this non-appearance.

The cases culminated in judgment in Mr. Kelly’s favour. The Circuit Court made a declaration he was entitled to the right of way which

he claimed.

9. William and Robert Ewing both appealed this decision to the High Court. The appeal first came before Ms. Justice Mella Carroll in

Galway on 19th November, 1996. Ms. Lorna Burke of Burke & Co., the solicitors then acting for the Ewings, sought an adjournment.

There was no appearance in court on behalf of Robert Ewing. Robert Ewing now says that he was not aware of the appeal as a result

of his solicitor’s alleged negligence. His appeal against the Circuit Court order was struck out. William Ewing’s case was adjourned to

the next sitting of the High Court in Galway on terms. The appeal ultimately came before the High Court (Kelly J.) sitting in Galway on

the 22nd July, 1997. By this time, William Ewing was representing himself. Kelly J. upheld the Circuit Court decision in relation to

Anthony Kelly’s trespass claim. William Ewing’s counterclaims in the two cases were dismissed with no order as to costs.

10. As these were Circuit Court appeals to the High Court, there was no further right of appeal. Thus, the issues between William

Ewing and Anthony Kelly, and all persons claiming through them, were at an end. Kelly J’.s judgment and order was sufficient to

determine for once and all the issues between Mr. Kelly and the members of the Ewing family. As was pointed out in a prior judgment

of this Court dated 31st October, 2001, Robert Ewing was privy to William Ewing’s claim. Put simply, this meant that any claim which

Robert Ewing might have had was subsumed in William Ewing’s unsuccessful appeal. Kelly J.’s judgment was therefore as binding on

Robert Ewing as it was on his father.

11. On the 6th May, 1999, Robert Ewing separately issued High Court proceedings. He sought to re-open the issues which had been

determined. William Ewing unfortunately died on the 20th January, 1999. Robert Ewing’s view is that the pressures of the litigation

badly affected his father’s health. The appellant’s concern is that his father sold land to Anthony Kelly under Mr. Kelly’s undue

influence, and the influence of a firm of solicitors involved in the transaction. The appellant thought that the sale price of the lands

was well below the true valuation of the property.

12. In these new High Court proceedings, he combined these claims with allegations of negligence and fraud against the Law Society

and a number of solicitors firms, who, at various times, had acted for (or against) the family. The State was also joined. All, save the

State defendants, brought motions to strike out the proceedings, submitting the matters in issue had previously been finally

determined. Judgment in that application was delivered on the 16th May, 2000, by the High Court (O’Sullivan J.) Invoking the inherent

jurisdiction of the Court, that judge acceded to the application made by Anthony Kelly, VP Shields and Sons, CP Crowley and Co., the

Law Society of Ireland, Egan O’Reilly Solicitors, and Burke and Co. The High Court ordered that the proceedings be struck out on the

grounds that Robert Ewing could not conceivably succeed as the issues had been previously determined. Mr. Ewing appealed against

that order. This Court delivered judgment on the 31st October, 2001, dismissing the appeal. By order of the High Court, made on the

31st March, 2003, the proceedings against the remaining State defendants were struck out, there being no appearance by the

appellant. By April 2003, therefore, there were no proceedings in being. The matters in issue had been determined by court orders.

The Present Proceedings

13. In 2006, Mr. Ewing brought the proceedings the subject matter of this application. This was the third set of proceedings

concerning the same background. Here, he sued only Ireland and the Attorney General as defendants. He delivered a Statement of

Claim on the 27th July, 2006. This was followed by the respondent’s motions to strike out the proceedings pursuant to Order 19 Rule

27 and Order 19 Rule 28 of the Rules of the Superior Courts 1986, and pursuant to the inherent jurisdiction of the court. The

application was heard in the High Court (Dunne J.) on the 11th June, 2008.

14. As part of a careful ex tempore judgment, the High Court judge summarised parts of the Endorsement of Claim which were actually

set out in the Statement of Claim. The appellant is of the view that some previous judgments only cited selected passages from his

pleadings in order to create embarrassment. Here, such quotation is necessary simply to set out his case as pleaded. The references

to the “defendant” in the quotation below are both to Ireland and the Attorney General. The Endorsement of Claim read as follows:

“1. Between the 15th day of June 1987 and 31st day of October 2001, the defendant generally failed – given the nature

of the proceedings and the circumstances of the Plaintiff which gave rise to them, to provide a reasonable environment

by which the Plaintiff could reasonably respond to the intrinsic demands to the litigation in question, causing excessive

loss to the Plaintiff in relation to both the proceedings concerned and further issues pertaining to his enjoyment of home,

family and life in Eire, and also to his character.

2. The said negligence and breach of duty by the defendant, its servants or agents, caused the abnormal circumstances

by which a High Court Order was made against the Plaintiff on the 31st day of March 2003, dismissing the remaining

portion of his proceedings and having Costs awarded against him in relation to it, when under normal circumstances such

Action on the part of the defendants in such a matter would have been frivolous and would not have resulted in such an

Order being made against the Plaintiff.

3. The defendant failed throughout – and has failed to date, to respond with due care and diligence toward the Plaintiff in

relation to the injustice that threatened and/or was done to him, making this (and perhaps further) litigation in relation to

the matter necessary, thereby adding further to the onerous burden on the Plaintiff in relation to his home and the

vindication of his character as a defendant and a plaintiff in the proceedings referred to above.

4. The defendant is responsible under Article 40.3.2 of the Constitution to endeavour to address the injustice done to the

Plaintiff and vindicate his life, person, good name and property rights where through the fault of the defendant they have

been unlawfully eroded. ”

15. The reliefs sought in the Statement of Claim were as follows:

“1. A recommendation that the Government shall institute a comprehensive enquiry into the matters that give rise to

these proceedings, and that the State is liable to pay all Costs presently awarded against the Plaintiff whilst such an

inquiry takes place.

2. Regardless of whether or not the Government chooses to institute a comprehensive enquiry into the matters that gave

rise to these proceedings the State is liable to pay all Costs presently awarded against the Plaintiff in respect of the

matters that gave rise to these proceedings.

3. A recommendation that the above enquiry shall include all issues that presently relate to either the plaintiff’s enjoyment

of his home (Abbeyville House), and that it should also provide the ultimate means by which the plaintiff might obtain

compensation for the many losses he may have sustained that differ from any loss he has (or has not) been compensated

for by this Honourable Court.

4. A declaration that in the event of enquiry deciding, or in the event of any subsequent Court dealing with any aspect of

the matter deciding, that the first named defendant in 4776P/1999 would not normally, in accordance with normal legal

practice, have legal title and ownership of the land that the Plaintiff’s father had agreed to sell to him for €35,000, in

1982, the State shall be entitled to full ownership of the land in question.

5. A declaration that the High Court judgment in 4476P/1999 dated 16th May 2000, is void and should be deleted from

High Court records.

6. A declaration that the two related Supreme Court judgments in 4776P/1999 (Appeal No 323/00), are void and should be

deleted from the Supreme Court records.

7. Compensation for the demeaning of the plaintiff’s character.

8. Liberty to apply.”

16. In addition to the foregoing, the appellant sought orders pursuant to Article 40.3.1 and Article 40.3.2 of the Constitution of

Ireland in order that the matter of Abbeyville House, and his alleged unlawful imprisonment therein, be concluded in accordance with

the express purposes of the Constitution, or failing that in accordance with seven other Articles of the Constitution, and Article 1

Protocol 1 of the European Convention on Human Rights.

17. In the High Court, Dunne J. commented that the plaintiff had submitted that he had been excluded from the earlier proceedings,

and that he was dissatisfied both with the judgment of O’Sullivan J., and the judgment of this Court delivered in proceedings bearing

record number 1999/4776P to which reference has been made earlier.

18. The High Court judge observed that Mr. Robert Ewing was “genuine in his concerns, but his concerns do not assist in

demonstrating a cause of action in these proceedings.” She held that the proceedings were fundamentally misconceived. An

examination of the Statement of Claim led her to the conclusion that these proceedings constituted an impermissible collateral attack

on the decisions of the High Court and Supreme Court in earlier proceedings.

19. The High Court judge pointed out that it was not open to a court to direct the government to carry out an enquiry. This was not

a justiciable matter. She concluded that the matters pleaded did not disclose a cause of action, and should not appear in pleadings.

In the circumstances, she concluded she had no option to dismiss the proceedings brought bearing Record No 2006/2620P. She did so

on the basis of Order 19 Rule 27, Order 19 Rule 28 and in the interests of justice.

20. The members of this Court have also carefully read the Statement of Claim. The pleadings evince Mr. Ewing’s concern regarding a

number of perceived irregularities in the earlier proceedings. He now says that his concern in the 1996 set of proceedings was not

really about the land, but, rather, to challenge the “damning bill of costs” that was directed entirely against his then ill father. He

wanted to deny Anthony Kelly right of way access through an area where he says it would be natural for a garden to exist.

21. The Statement of Claim sets out matters relating to certain tragic events which occurred to persons close to the appellant. It is

difficult to see how those unfortunate events are connected to the case at hand. The appellant alleges abuse of legal power, and

expresses concern about a number of social and cultural phenomena. He expresses concern that the earlier judgments created an

offensive picture of him, as, he says, he was denied a reasonable opportunity to take part in the proceedings.

22. In his oral submission on this appeal, the appellant claimed that, pursuant to Article 34.4.6 of the Constitution, the State would

be entitled to rescind the earlier High Court and Supreme Court judgments as, he contended, the judgment of the Supreme Court

arose from negligence in respect of those Articles of the Constitution and must be deemed null and void. The plaintiff expressed

concern regarding delay in the delivery of the High Court judgment which he says contributed to the adverse Supreme Court decision.

It is clear that the issues he raises are non-justiciable and constitute a collateral attack on earlier judgments of this and other Courts.

The power to strike out proceedings

23. As this appeal concerns issues which now frequently come before the courts, it may be helpful to make some more general

observations as to the conduct of this and similar applications. Court time is now a scarce resource; the courts have a public duty to

ensure that such time is used appropriately. As well as rights of access to the courts, both represented litigants and litigants-in-

person have duties. There is no duty to allow the continuance of unstateable cases to full hearing. Pleadings must be focused on the

real issues, as must written and oral submissions.

24. Order 19 Rule 27 of the Rules of the Superior Courts confers a broad jurisdiction upon the court to strike out what are termed

unnecessary, scandalous or prejudicial pleadings. It provides:

“The Court may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or

pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of

the action; and may in any such case, if it shall think fit, order the costs of the applications to be made as between

solicitor and client.”

25. Order 19 Rule 28, on the other hand, provides the court with the jurisdiction to strike out a pleading for failing to show any

reasonable cause of action; or for being, what is termed, “frivolous or vexatious”. The Rule provides:

“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 or in any 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 entered accordingly, as may be just”.

This rule permits a court to strike it out an entire pleading rather than simply parts of it (see Aer Rianta v Ryanair [2004] 1 I.R. 506).

26. As well as the jurisdiction outlined which obtains under the Rules of the Superior Courts, the court also has an inherent power to

strike out entire proceedings (see the range of cases commencing with Barry v Buckley [1981] I.R. 306, cited in chapter 16 of Delany

and McGrath, Civil Procedure in the Superior Courts, 3rd ed. (2012); and also Sun Fat Chan v Osseous Ltd [1992] 1 I.R. 425). In such

an application, the court considering the matter is not limited to a consideration of the pleadings but may be free to hear evidence on

affidavit relating to issues in the case. This jurisdiction exists to ensure that an abuse of court process does not take place.

27. This more radical power should be used sparingly. A court must take the plaintiffs case at its highest, and assume that all the

relevant matters which are pleaded by a plaintiff will be established by him. A court must also take into account that a situation may

exist where a simple amendment of the pleadings could “save” the case.

28. In Riordan v Ireland (No. 5) [2001] 4 I.R. 463, O’Caoimh J. in the High Court considered Dykun v Odishaw (Unreported, Alberta

Court of Queen’s Bench, Judicial District of Edmonton, 3rd August, 2000), which in turn referred to the decision of the Ontario High

Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685. He held that the following matters tended to show that a

proceeding is vexatious:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent

jurisdiction;

(b) where it is obvious that an action that cannot succeed, or if the action would lead to no possible good, or if no

reasonable person could reasonably expect to obtain relief;

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by

multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions

brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions.

This is a helpful summary which is now frequently applied.

Application to the present case

29. In the course of oral submissions, Mr. Ewing submitted that he did not think it would be fair for any party who had previously been

joined in the earlier proceedings to bear the costs for what occurred. He held the State culpable. However, the Court specifically

enquired of Mr. Ewing upon what basis the State was to blame for what occurred. It was not possible to discern from any of the

submissions how Ireland and the Attorney General could possibly have been negligent, or had acted in breach of any duty of care.

The defendants now joined in these proceedings had no power over, or duty covering, the events which have been described. On the

facts as pleaded, neither defendant owed a duty to the appellant or his late father in the initiation, conduct, or conclusion of the

Circuit Court proceedings, the appeal therefrom, the later High Court proceedings, or appeals to this Court. The action is, therefore,

entirely misconceived.

30. The Court system contains within itself its own system of appeals. That system operates within parameters laid down by the

Constitution and by statute. The fact that Ireland and the Attorney General were joined in the earlier High Court proceedings renders

Mr. Ewing’s present case even more problematic, as both were parties to the claim which was struck out, and where that decision

was not appealed. The very purpose of the present proceedings is to mount a collateral attack on the earlier decisions of the courts.

This is not a permissible procedure and would, of itself, warrant the proceedings being struck out.

31. Both the common law and public policy dictate there must be finality in proceedings between parties. Article 34.4.6 of the

Constitution expresses this same objective in clear and unambiguous terms. That Article provides that the decisions of the Supreme

Court in all cases be “final and conclusive”. The provision is expressed to apply in “all cases” and there is nothing in the circumstances

of this appeal which would justify disregarding this provision.

32. Were it necessary to do so, I would uphold the High Court judge on each of her findings regarding non compliance for the

purposes of Order 19 Rule 27 and Rule 28. However, such specific findings are unnecessary. As well as being misconceived therefore,

the reliefs sought herein constitute an impermissible collateral attack on earlier decisions of this Court and the High Court.

33. The matters sought to be raised have already been determined by courts of competent jurisdiction. It is obvious the action

brought cannot succeed against the defendants now joined. The action is brought for an improper purpose, and not for the assertion

of legitimate rights. The issues raised here are ones which have been ruled on in earlier decisions and have been supplemented by

actions against the many lawyers engaged and involved. What is sought, essentially, is to use these proceedings to canvass matters

already raised and already determined (see Riordan v Ireland (No.5) cited above). Even taking the appellant’s case at its highest, and

assuming every item pleaded was proved and established, it is plain the claim cannot succeed. One cannot envisage any amendments

to the pleadings which would remedy the defects in the claim which are fundamental and, unfortunately, simply misconceived. There

are no circumstances pleaded where the claim against the defendants could possibly succeed. Unavoidably, the only conclusion must

be that the proceedings are an abuse of court process and should be struck out on that ground.

Some additional observations

34. I would like to add one or two further observations on these applications which, for all judges of the superior courts, will be

statements of the obvious.

35. For the purposes of this hearing, the court had benefit of seeing the entirety of the documents in the case beforehand. Such

opportunities do not always arise in the manner in which cases come to judges in the High Court. Clearly, there is a substantial

benefit if certain categories of case can be assigned early to a specific judge for directions and case management. Additionally, when

such a case is assigned, there can be no objection to a judge taking the opportunity to consider the documents so as to ensure that

the entirety of the points being made by a personal litigant are understood. Such a course of action will frequently result in the saving

of court time. As the Constitution provides for justice to be administered in public, it may be necessary for the judge to indicate that

material documents are treated as having been opened in court. On occasion, it may be helpful for a court to conduct a short

preliminary hearing and to indicate to litigants that the presentation of a case will be assisted by its being put in a concise written

form and submitted to the court before the hearing. Opportunities should be given to both sides to put in written submissions. On

occasion, courts advise litigants as to the manner in which their case can best be understood and presented in written form. Thus,

frequently, it will be unnecessary for parties who represent themselves to present lengthy oral statements in court when the legal

points can be conveniently submitted to the court for consideration and perusal beforehand. This need not preclude a court (if

necessary) allocating an appropriate period of time sufficient for parties to highlight in oral argument any point they may wish. As was

the situation in this appeal, it may also be important to establish whether there have been previous cases where the same issues

have been raised by a plaintiff.

Conclusions

36. There must come a point when there is finality in litigation. In this litigation, that point has now arrived. No matter how deeply felt

Mr. Ewing’s concerns might be about the events over the last 35 years, it must now be understood that neither this Court, nor any

other court, can now can intervene or play any role in matters which have long since been finalised. In the circumstances, therefore,

the Court will dismiss this appeal, and uphold the learned High Court judge’s order, but striking out these proceedings as an abuse of

court process pursuant to the inherent jurisdiction of the Court.