Supreme Court allows appeal dismissing claim as bound to fail, holding consequences argument insufficient for dismissal.

THE SUPREME COURT

[Appeal No: 15/2010]

Hardiman J.

Clarke J.

Laffoy J.

Between/

Michael Keohane

Plaintiff/Appellant

and

John Hynes

First Named Defendant

and

Duncan Grehan practising under the style and title of

Duncan Grehan and Partners

Second Named Defendant/Respondent

Judgment of Mr. Justice Clarke delivered the 20th November, 2014

1. Introduction

1.1 This appeal raises questions about the exercise of the inherent jurisdiction which the courts possess to dismiss proceedings as

being bound to fail. This case generally arises out of a contract entered into in September 2000 for the purchase of shares in a

company called Lawayo Limited. In the proceedings, the plaintiff/appellant ("Mr. Keohane") asserts that he entered into an

arrangement with the first named defendant ("Mr. Hynes") for the sale to Mr. Hynes of the shareholding in question. It would appear

that a written contract was entered into in respect of the sale of the shares in question but that the contracting party in that

contract was not Mr. Hynes but rather a company called Studley Investments Limited ("Studley"). While some of the sums due under

the contract were paid, a significant balance in excess of IR£650,000 is said to remain due.

1.2 Mr. Keohane alleges that Mr. Hynes is liable to pay the euro equivalent of that balance together with interest. However, Mr.

Keohane has also joined the second named defendant/respondent ("Grehan and Partners") who are the solicitors who acted both on

his behalf and on behalf of the purchaser in the transaction in question. Against Grehan and Partners it is alleged that they were

negligent in failing to advise Mr. Keohane of the fact that he was contracting with a company rather than with Mr. Hynes personally.

In addition, Mr. Keohane claims that some of the provisions of the contract were insufficient to protect his interests. It is said that

there was an actionable failure on the part of his solicitors to ensure that any contract entered into was, irrespective of who the

purchaser might be, sufficient to protect his interests. It is argued that those issues are exacerbated by what is said to have been

the conflict of interest arising by virtue of the fact that Grehan and Partners acted for both sides. In summary, Mr. Keohane alleges

that, if the true nature of the contract which he was to sign had been explained to him, he would not have entered into that

contract. In addition, it is said that it was possible that, if there had been no wrongdoing on the part of Grehan and Partners, a

contract which was with Mr. Hynes personally and which did adequately protect his interests could have been procured and entered

into. It is said that Studley became insolvent and was dissolved so that the contract with them became worthless. The claim is

framed in the tort of negligence, in breach of contract and in misrepresentation.

1.3 Against that background, Grehan and Partners brought an application before the High Court seeking to have the proceedings

dismissed either under O.19, r.28 of the Rules of the Superior Courts or under the inherent jurisdiction of the Court. Hedigan J.

acceded to that application and dismissed the proceedings: (See Keohane v. Hynes & anor [2009] IEHC 601). Mr. Keohane appealed

to this Court against that finding. It also appears that Hedigan J. made an order striking out as being bound to fail the proceedings

not only as against Grehan and Partners but also against Mr. Hynes. It would appear that no application had been brought by Mr.

Hynes seeking such a strike out. In those circumstances, it is said that there could have been no proper basis on which the claim

against Mr. Hynes could have been struck out in any event. This side issue is one to which it will be necessary to turn in due course.

1.4 In addition, in the context of this appeal, Mr. Keohane sought leave to introduce additional evidence in the form of what is said to

be a recording of a conversation between his wife and a solicitor in the firm of Grehan and Partners.

1.5 At the conclusion of the hearing, and having taken some time to consider the matter, the Court informed the parties that the

appeal as and between Mr. Keohane and Grehan and Partners would be allowed and that the order of Hedigan J. dismissing the

proceedings as against Grehan and Partners would be vacated. The Court indicated that it had reached that conclusion without

needing to address the question of additional evidence for, as the Court noted, it was satisfied that, on the basis of the evidence

before the High Court, the proceedings should not have been dismissed. It was not, therefore, necessary to determine the question of

whether, had a different conclusion been reached, it would have been appropriate to admit the additional evidence concerned. Other

than recording the nature of that application to admit additional evidence for the record and noting the issues which thereon arose,

this judgment, which sets out the reasons why I supported the Court's view as thus announced, will not seek to express any view on

the additional evidence question. Against that background, it is necessary to record the issues which arose at the hearing.

2. The Issues

2.1 The first question which it might, of course, have been necessary to address was as to whether the additional evidence should be

admitted. It was argued on behalf of Grehan and Partners that the criteria for the admission of fresh evidence on appeal, as identified

in the jurisprudence in that regard, had not been met.

2.2 So far as the substantive issue on the appeal is concerned, it was accepted by both parties that the jurisdiction to dismiss on the

basis of being bound to fail is to be sparingly exercised. It might be said that there was a minor issue between the parties as to the

precise application of that jurisprudence to certain types of what might be called "documents cases" and also as to the extent to

which this case can properly be regarded as such a documents case. In fairness, that question arose more in the context of the

argument raised on behalf of Mr. Keohane concerning the approach of the trial judge rather than on the argument before this Court.

2.3 It was urged on behalf of Mr. Keohane that the trial judge had impermissibly reached conclusions of fact on an application to

dismiss. Rather, it was said, the trial judge should have accepted, for the purposes of the application to dismiss, that the facts were

as averred to in the affidavit evidence filed on his behalf. Against the background of those issues, it is first necessary to refer to the

judgment of the trial judge.

3. The High Court Judgment

3.1 Having set out a chronology of the case, Hedigan J. cited from the judgment of Costello J. in Barry v. Buckley [1981] I.R. 306 to

effect that a jurisdiction to strike out proceedings exists under both O. 19 r. 28 and under the inherent jurisdiction of the court. The

trial judge then turned to examine the evidence to see if there was any evidential support for the allegations made on behalf of Mr.

Keohane. Hedigan J. found that there was no evidence to support the contention that Mr. Keohane had contracted with Mr. Hynes in

an individual capacity only and not with Studley. The trial judge placed particular reliance on a letter of the 17th August, 2002, from

Mr. Keohane to Grehan and Partners, in coming to this conclusion. Consequently, Hedigan J. held that this conclusion cut “through

the heart of his claim against the first named defendant.”

3.2 The trial judge then moved on to the consequences of this finding for Grehan and Partners. He examined the possibility that Mr.

Keohane might still be able to sustain a claim against his solicitors on the following two grounds:

(a) That Grehan and Partners failed to ensure that the contract contained a personal guarantee which would have

guaranteed payment to Mr. Keohane; and

(b) That Grehan and Partners failed generally to ensure that Mr. Keohane received the amount due to him under the

contract.

Hedigan J. held that neither of these grounds was sustainable, even on Mr. Keohane’s version of events, as Mr. Keohane’s version was

found to be dependent on the contention that the agreement reached was of a “fundamentally different nature” to that found by the

Court. The trial judge concluded:

“It is clearly impossible to run the case on this basis. In light of this, I am satisfied that this is an appropriate action in

which to exercise the Court’s inherent jurisdiction and exceptional jurisdiction to strike out the proceedings. The

continuation of the case can only result in the expansion of the associated costs and the continued impugnment of the

second named defendant’s professional reputation.”

3.3 It is next appropriate to turn briefly to the issue of new evidence.

4. New Evidence

4.1 By Notice of Motion dated the 20th September, 2011, Mr. Keohane applied to adduce additional evidence in the form of a tape

recording (and transcript of that recording) which purports to record a conversation in May 2001 between Mr. Keohane’s wife and Mr.

Malachy O’Callaghan, a solicitor in the firm of Grehan and Partners. Mr. Keohane alleges that the contents of this recording/transcript

undermines the account of events given by Mr. O’Callaghan in his affidavit, and confirms his own account of events.

4.2 Order 58, rule 8 of the Rules of the Superior Courts provides that the Supreme Court has full discretionary power to receive

further evidence on questions of fact. However, if the new evidence sought to be tendered was in existence before the date of the

decision in the High Court, such evidence should normally only be admitted on special grounds and the leave of the Court must be

obtained. Mr. Keohane sought to have this new evidence admitted in the interests of justice. He additionally argued that his case on

this point is outside the established jurisprudence as the High Court judgment was not reached after a final trial on all the issues but

rather on a motion in which it was asserted that the case was bound to fail.

4.3 Grehan and Partners relied on the judgment of this Court in Murphy v. Minister for Defence [1991] 2 I.R. 161, where Finlay C.J.

posited the following three criteria for the admission of new evidence:

“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such

that it could not have been obtained with reasonable diligence for the use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case,

though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though

it need not be incontrovertible.”

It was said that these criteria have been applied by the Supreme Court on numerous occasions since, including in McMullen v. Clancy

(No.2) [2005] 2 I.R. 445, and McGrath v. Irish Ispat Ltd [2006] 3 I.R. 261. Grehan and Partners also pointed to the dicta of O’Donnell

J. in Emerald Meats Ltd v. Minister for Agriculture, Ireland and the Attorney General [2012] IESC 48 for the proposition that these

criteria are to be strictly applied. Finally, it was contended that an even stricter test applies where the evidence sought to be

adduced is not evidence of facts relevant to an issue in the action but rather evidence which goes to the credibility of a witness.

4.4 It was argued on behalf of Mr. Keohane that the jurisprudence to which I have referred does not apply to the fullest extent in

cases where it is sought to dismiss proceedings on the basis of their being bound to fail. In that context, reliance was placed, by

analogy, on the approach of the courts to the dismissal of cases which do not disclose a cause of action on the pleadings. For

instance, in Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425, the Supreme Court, per McCarthy J., stated at p. 428:

“By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to view that if

the statement of claim admits of amendment which might, so to speak, save it and the action founded it, then the

action should not be dismissed.”

4.5 The question which might have arisen was as to whether, by analogy, it might be said that the Court should lean in favour of

allowing additional evidence to be introduced in an appeal involving an application to dismiss as being bound to fail where there is a

realistic possibility that the evidence in question might provide a legitimate factual basis for the claim and, thus, save it from being

dismissed without a full trial.

4.6 Whatever may be the merits of those arguments concerning the test by reference to which it might be appropriate to admit new

evidence on appeal in a case involving an application to dismiss as being bound to fail, and whatever might have been the merits of

the application to admit new evidence in this case, it seemed to me to be clear that it would only be necessary to consider whether it

was appropriate to admit new evidence if the Court came to the conclusion that Hedigan J. was correct to dismiss the proceedings

against Grehan and Partners as being bound to fail on the basis of the evidence which was before him. The only basis on which the

additional evidence was sought to be tendered (as confirmed by counsel for Mr. Keohane) was to bolster a contention that the claim

was not bound to fail in the event that the Court agreed with Hedigan J. that the proceedings could properly be regarded as being

bound to fail on the basis of the evidence which was before the High Court. It was for that reason that I supported the Court's

finding that it was unnecessary to consider whether new evidence ought be admitted, for I fully agreed with the Court's view that the

proceedings could not be said to be bound to fail even on the basis of the evidence which was before the High Court.

4.7 Against that background, it is appropriate to set out the reasons why I supported the Court's view that the proceedings had not

been shown to be bound to fail

5. Were the proceedings bound to fail?

5.1 It is important, in that context, to identify the real issue which arises in these proceedings at least insofar as they involve Mr.

Keohane's claim against Grehan and Partners. That claim is to the effect that Grehan and Partners were negligent in the way in which

they handled the transaction concerning the share sale. In particular, it is said that the instructions given to Grehan and Partners

were that an agreement should be entered into with Mr. Hynes personally, and that Grehan and Partners did not advise Mr. Keohane

that the written contract presented for signing was with a limited liability company. In addition, it is said that Grehan and Partners did

not advise as to the presence and effect of certain other clauses in the share purchase agreement which, it is argued, fell well short

of protecting Mr. Keohane's interests. It goes without saying that, at least at the level of principle, such a claim could succeed. If a

person instructs a solicitor to procure that he enter into an agreement with an individual and the solicitor, and without properly

advising him of the fact, procures that he signs a contract with a limited liability company instead, then there may be a claim in

negligence although there might, of course, be important questions as to what the consequences of any such negligence might be. As

already noted, it is said that the way in which the agreement was structured did not properly protect Mr. Keohane and, in particular,

appeared to contemplate that some of the payments to be made to him for the sale of his shares in the company were to come out

of the sale proceeds of the company's assets. In that sense, it was argued that the contract may well have been in breach of s. 60

of the Companies Act 1963. In that, and other respects, it was argued that the contract was defective to Mr. Keohane's

disadvantage.

5.2 I do not read the judgment of the trial judge as taking the view that such claims might not, at least in theory, be successful.

Rather, the view which the trial judge appears to have taken is that the necessary factual basis for such a claim could not be

established. As noted above, Hedigan J. concluded that Mr. Keohane’s claim was fundamentally premised on the contention that he

was understood that he was contracting solely with Mr. Hynes, and not Studley. Having held there was no evidence to sustain this

contention, the judge ruled it was “impossible to run the case on this basis”.

5.3 It is on that issue that it is necessary to examine the evidence. Mr. Keohane, in his affidavit of the 18th March, 2009, denied that

he was aware of the fact that he was contracting with a limited liability company, and affirmed that it was his belief that he was

contracting with Mr. Hynes personally. He further claimed that he was so advised both by Mr. Hynes and by Grehan and Partners. On

the date the agreement was concluded, Mr. Keohane stated that portions of the agreement were read to him, although he was not

allowed to read the document personally. It is said that the document was immediately taken away from him when he signed it and

that he was refused a copy. The account of Ms. Betty Keohane, the wife of Mr. Keohane, who was also present at the signing of the

agreement in 2000, as set out in her affidavit of the 17th July, 2009, is almost identical to that of Mr. Keohane. This version of events

is denied by Grehan and Partners, who have given an alternative account in the affidavits of Malachy O’Callaghan.

5.4 The real question was as to whether, based on that evidence, it can fairly be said that Mr. Keohane's claim as against Grehan and

Partners is bound to fail on the facts.

5.5 At this stage, it is important record what, in my view, was a very significant development which occurred at the hearing of the

appeal. As noted earlier, the clear focus of the judgment of the trial judge was on the question of whether the allegation that Mr.

Keohane did not know that he was contracting with Studley was capable of being sustained. As also noted, Hedigan J. concluded that

that allegation could not be sustained and that an inability to sustain that allegation rendered the proceedings bound to fail.

5.6 However, at the hearing of the appeal, counsel on behalf of Grehan and Partners acknowledged that, in accordance with the

jurisprudence to which I will shortly refer, the Court would have to accept, for the purposes of this application, that Mr. Keohane

would be able to sustain the factual basis of his argument. Likewise, counsel accepted that there were other potentially sustainable

allegations of negligence concerning the way in which the contract was drafted. Thus, to a very real extent, it appeared to me that

counsel largely abandoned the reasoning of the trial judge but sought to justify the trial judge's ultimate conclusions on a different

basis. While it will be necessary to explore that basis in more detail in due course, it can, in summary, be said that the focus of the

argument presented to this Court was that there was no sustainable basis on which Mr. Keohane would be able to establish any

adverse consequences of any wrongdoing which might be proven. On that basis, it was said that a wrong without damage was not

actionable and that proceedings in which it was impossible that damage could be established were, in substance, bound to fail.

5.7 It seemed to me to follow, therefore, that counsel accepted, to a very significant extent indeed, the principal criticism which was

made by Mr. Keohane of the trial judge's judgment, being that the trial judge had strayed impermissibly into issues of fact.

5.8 Given the approach which was adopted by the trial judge and in the light of the argument as it developed, it does seem to me to

be important, at this stage, to revisit and restate the undoubted limitations which exist, in the context of a motion to dismiss as being

bound to fail, on seeking to determine facts. I, therefore, turn to the jurisprudence.

6. Jurisprudence

6.1 In my High Court judgment in Salthill Properties Limited & anor v. Royal Bank of Scotland plc & ors [2009] IEHC 207, which was

approved in the recent judgment of this Court in Lopes v. Minister for Justice Equality & Law Reform [2014] IESC 21, I explained the

distinction between the jurisdiction which arises under O.19, r. 28 and that which arises under the inherent jurisdiction of the court.

At para. 3.12. of Salthill Properties, I said the following:

“It is true that, in an application to dismiss proceedings as disclosing no cause of action under the provisions of Order

19, the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they

would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim. However, I would

not go so far as to agree with counsel for Salthill and Mr. Cunningham, to the effect that the court cannot engage in

some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the court. A simple example

will suffice. A plaintiff may assert that it entered into a contract with the defendant which contained certain express

terms. On examining the document the terms may not be found, or may not be found in the form pleaded. On an

application to dismiss as being bound to fail, there is nothing to prevent the defendant producing the contractual

documents governing the relations between the parties and attempting to persuade the court that the plaintiff has no

chance of establishing that the document concerned could have the meaning contended for because of the absence of

the relevant clauses. The whole point of the difference between applications under the inherent jurisdiction of the court,

on the one hand, and applications to dismiss on the factual basis of a failure to disclose a cause of action on the other

hand is that the court can, in the former, look to some extent at the factual basis of the plaintiff’s claim.”

6.2 However, it is important to emphasise that the extent to which it is appropriate for the Court to assess the evidence and the

facts on a motion to dismiss as being bound to fail is extremely limited. In that context, it is, perhaps, appropriate to go back to one

of the earlier important cases on this topic being Jodifern v. Fitzgerald [2000] 3 I.R. 321. There, Barron J. observed at p. 332:

“One thing is clear, disputed oral evidence of fact cannot be relied upon by a defendant to succeed in such an

application. Again, while documentary evidence may well be sufficient for a defendant's purpose, it may well not be if the

proper construction of the documentary evidence is disputed. If the plaintiff's claim is based upon allegations of fact

which will have to be established at an oral hearing, it is hard to see how such a claim can be treated as being an abuse

of the process of the court. It can only be contested by oral evidence to show that the facts cannot possibly be true.

This however would involve trial of that particular factual issue.”

He then added at p. 333:

“In my view, a defendant cannot succeed in an application to strike out proceedings on the basis that they disclose no

reasonable cause of action or are an abuse of the process if the court on the hearing of such application has to

determine an issue for the purpose of deciding whether the plaintiff could possibly succeed in the action. It is not the

function of the court to determine whether the plaintiff will succeed in the action.

The function of the court is to consider one question only, was it proper to institute the proceedings? This question must be

answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce. If the claim could

never have succeeded, then the proceedings should be struck out. There is no room for considering what evidence should be

accepted or how it should be interpreted. To do the latter is to enter on to some sort of hearing of the claim itself.”

In that same case, Murray J., in explaining the need for caution in such an application, stated at p. 334:

“The reason for such caution is self-evident. The making of an order staying or dismissing the proceedings on the basis

of such inherent jurisdiction deprives the plaintiff of access to the courts for a trial of his or her action.

The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a

good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court

by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent

jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or

substantial questions of law in substitute for the normal plenary proceedings.”

6.3 In like vein, Birmingham J., in Burke & Anor v. Anglo Irish Bank Corporation PLC & Anor [2011] IEHC 478, emphasised that a court

cannot seek to resolve conflicts of fact in an application to dismiss as being bound to fail, but rather is required to accept the facts

as deposed to on behalf of the plaintiff.

6.4 More recently still, in Lopes, I said the following at para. 2.6 of my judgment:

“At the same time, it is clear that certain types of cases are more amenable to an assessment of the facts at an early

stage than others. Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a

court to reach an assessment as to whether the proceedings are bound to fail within the confines of a motion to

dismiss. In that context, it is important to keep in mind the distinction, which I sought to analyse in Salthill Properties,

between cases which are dependent in themselves on documents and cases where documents may form an important

part of the evidence but where there is likely to be significant and potentially influential other evidence as well.”

The passage referred to above from Salthill Properties as to the various types of documents cases begins at para. 3.9 of the High

Court judgment and is as follows:-

“It has often been noted that an application to dismiss as being bound to fail may be of particular relevance to cases

involving the existence or construction of documents. For example, in claims based on written agreements it may be

possible for a party to persuade the court that no reasonable construction of the document concerned could give rise to

a claim on the part of the plaintiff, even if all of the facts alleged by the plaintiff were established. Likewise, a defendant

in a specific performance action may be able to persuade the court that the only document put forward as being a note

or memorandum to satisfy the Statute of Frauds, could not possibly meet the established criteria for such a document.

More difficult issues are likely to arise in an application to dismiss when there is at least some potential for material

factual dispute between the parties capable of resolution only on oral evidence. At this end of the spectrum, it is difficult

to envisage circumstances where an application to dismiss as bound to fail could succeed. In between are a range of

cases which may be supported to a greater or lesser extent by documentation.

3.10 However, it is important to emphasise the different role which documents may play in proceedings. In cases, such

as the examples which I have given earlier, involving contracts and the like, the document itself may govern the legal

relations between the parties so that the court can consider the terms of the document on its face and may be able to

come to a clear view as to the legal consequences flowing from the parties having governed their relations by the

document concerned.

3.11 However, there are other cases where documents are not vital in themselves save that they may cast light on the

underlying facts which may be at the heart of the proceedings concerned. Correspondence, minutes of meetings,

memoranda and the like, do not, of themselves, create legal relations between the parties. Rather they purport to

reflect facts such as what was said at meetings, what was communicated from one party to another or the like. Parties

may explain or seek to clarify what might otherwise appear to be the natural meaning of such documents. At the end of

the day, it will be what view the court takes as to what actually happened that will determine the facts on the basis of

which the court will come to its judgment. Contemporary documentation is often a very valuable guide to such facts,

but such documentation is not necessarily determinative. It is important, in that context, not to confuse cases which

are dependent on documents themselves with cases where documents may be a guide, albeit often a most important

guide, to the underlying facts which need to be determined in order to resolve the issues between the parties.”

6.5 It is important, for the avoidance of any doubt, that the overall principle be clearly stated. As pointed out in many of the

authorities, not least in the judgment of Murray J. in Jodifern, the underlying basis of the jurisdiction to dismiss as being bound to fail

stems from the court's inherent entitlement to prevent an abuse of process. Bringing a case which is bound to fail is an abuse of

process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to prevent that abuse of process by

dismissing the proceedings. However, as again noted by Murray J. in Jodifern, whatever might or might not be the merits of some form

of summary disposal procedure, an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues

on a summary basis.

6.6 It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted

when it is clear that the proceedings are bound to fail rather than where the plaintiff's case is very weak or where it is sought to

have an early determination on some point of fact or law. It is against that background that the extent of the court's entitlement to

look at the facts needs to be judged.

6.7 I am in full agreement with the views expressed by Birmingham J. in Burke. Where there is evidence placed before the court on

affidavit on behalf of a plaintiff which, if accepted at trial, might arguably lead to the plaintiff succeeding, then that is an end of the

matter. But it does not necessarily follow that a plaintiff even has to put evidence of that type before the court. In Lopes, I observed

at para 2.5:

“In order to defeat a suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put

forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and

which are necessary for success in the proceedings. Any assessment of the credibility of such an assertion has to be

made in the context of the undoubted fact, as pointed out by McCarthy J. in Sun Fat Chan (at p. 428), that experience

has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in

advance.”

I commented to similar effect in Salthill Properties at para 3.15:

“…it seems to me that I should assess the factual allegations …, not on the basis of whether those parties have shown

that they have evidence which, if accepted, would lead, arguably, to success in the proceedings but rather whether [the

applicants] have established that it is impossible that any such evidence will be produced at trial.”

6.8 What the Court can analyse is whether a plaintiff's factual allegation amounts to no more than a mere assertion, for which no

evidence or no credible basis for believing that there could be any evidence, is put forward. Likewise, the Court can go into

documentary facts where the relevant documents govern the legal relations between the parties or form the only possible evidential

basis for the plaintiff's claim (as in Lopes). As Barron J. noted in Jodifern, a court can look at a contract and it may become clear

beyond argument as to what that contract means. On that basis, it may follow that a plaintiff's claim may be bound to fail. But there

may be cases where, notwithstanding the text of a contract, facts are asserted and backed up either by evidence or by the

possibility that evidence might be found, which might lead to the contract being construed in some different way or the

consequences for the wrong alleged in the proceedings being differently considered. In such cases, as Barron J. made clear, the case

must go to trial.

6.9 In summary, it is important to emphasise the significant limitations on the extent to which a court can engage with the facts in an

application to dismiss on the grounds of being bound to fail. In cases where the legal rights and obligations of the parties are

governed by documents, then the court can examine those documents to consider whether the plaintiff's claim is bound to fail and

may, in that regard, have to ask the question as to whether there is any evidence outside of that documentary record which could

realistically have a bearing on the rights and obligations concerned. Second, where the only evidence which could be put forward

concerning essential factual allegations made on behalf of the plaintiff is documentary evidence, then the court can examine that

evidence to see if there is any basis on which it could provide support for a plaintiff's allegations. Third, and finally, a court may

examine an allegation to determine whether it is a mere assertion and, if so, to consider whether any credible basis has been put

forward for suggesting that evidence might be available at trial to substantiate it. While there may be other unusual circumstances in

which it would be appropriate for the court to engage with the facts, it does not seem to me that the proper determination of an

application to dismiss as being bound to fail can, ordinarily, go beyond the limited form of factual analysis to which I have referred.

6.10 It is an abuse of process to bring a claim based on a breach of rights or failure to observe obligations where those rights and

obligations are defined by documents and where there is no reasonable basis for suggesting that the relevant documents could

establish the rights and obligations asserted. Likewise, it is an abuse of process to maintain a claim based on facts which can only be

established by a documentary record and where that record could not sustain any necessary part of the factual assertions which

underlie the case. Finally, it is an abuse of process to maintain a claim based on a factual assertion in circumstances where there is

no evidence available for that assertion and, importantly, where there is no reasonable basis for believing that evidence could become

available at the trial to substantiate the relevant assertion. However, the bringing of a claim based on a factual assertion for which

there is or may be evidence (even if the defendant can point to many reasons why it might be argued that a successful challenge

could be mounted to the credibility of the evidence concerned) is not an abuse of process. It is for that reason that a court cannot

properly engage with the credibility of evidence on a motion to dismiss as being bound to fail and it is for that reason that the very

significant limitations which I have sought to identify exist in relation to the extent to which a court can properly engage with the

facts on such an application.

6.11 Against the background of that analysis, it seems to me that the argument raised on behalf of Mr. Keohane, to the effect that

the trial judge had trespassed into the facts beyond the limits which I have sought to identify, was well made. The points noted by

the trial judge, including the correspondence to which he referred, are all matters which, doubtless, can be put to Mr. Keohane and

his witnesses at trial and may, depending on the view which the trial judge takes of those points and the response of any relevant

witnesses to them, be properly taken into account by the trial judge in assessing the credibility of the evidence presented by and on

behalf of Mr. Keohane. But those points are no more than that. They are issues which may go to credibility. Credibility is for the trial

and not for a motion to dismiss as being bound to fail. Against that background, it is, perhaps, not surprising that counsel for Grehan

and Partners conceded that this application should progress on the assumption (despite it being strenuously denied by his clients)

that Mr. Keohane would be able to establish a breach of duty or breach of contract on the part of Grehan and Partners in relation

both to the argument that the contract should have been with Mr. Hynes personally and also as to what was said to be the

inadequacies of the contract itself. In substance, counsel's argument, in light of that concession, was that there was no sustainable

basis on which Mr. Keohane could establish any adverse consequences of any such breach. I, therefore, turn to that question.

7. Could there be consequences?

7.1 Three main issues arose under this heading. First, there was the question as to whether this Court should entertain that argument

in the first place. Senior counsel for Mr. Keohane indicated that his junior (who had appeared at the hearing before Hedigan J.) had

confirmed that an argument along those lines had not been addressed to the High Court at all. Counsel for Grehan and Partners (who

likewise had not appeared in the High Court) indicated that he could not contest that assertion. The Court was required, therefore, to

act on the assumption that this was a new point not raised in the High Court. Counsel for Grehan and Partners sought to characterise

the point as a variation on the argument made before Hedigan J. I did not agree. There is a very significant difference indeed, in my

view, between an assertion that a plaintiff's claim is bound to fail because he cannot establish a breach of duty or breach of

contract, on the one hand, and an assertion, accepting that the plaintiff could establish, on the basis of the plaintiff's case, such

breaches that no adverse consequences could sustainably be alleged.

7.2 This Court, in Lough Swilly Shellfish Growers Co-Operative Society Ltd & anor v. Bradley & anor [2013] 1 I.R. 227, set out the

basis for allowing a new argument to be made on appeal. At para. 27 of the judgment, O’Donnell J. said:-

“There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as

those where argument of the point would necessarily involve new evidence, and with a consequent effect on the

evidence already given (as in K.D. for example); or where a party seeks to make an argument which was actually

abandoned in the High Court (as in Movie News); or, for example where a party sought to make an argument which was

diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case

had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of

appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a

point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was

sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of

them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose

terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument to be made.”

7.3 As O'Donnell J. pointed out, there are a variety of factors which can properly be taken into account. However, one important

question is the extent to which it might be reasonable to assume that different or additional evidence might have been presented at

the trial had the new argument sought to be raised on appeal been then broached. Like consideration seems to me to apply on a

motion to dismiss. Certain arguments were put forward on this appeal by counsel on behalf of Mr. Keohane as to how he might be able

to maintain a claim in damages notwithstanding the points made on behalf of Grehan and Partners. It might well have been possible to

tender evidence before the High Court in relation to some of those matters if the issue of consequences had been raised there. In

those circumstances, it seemed to me that this case was at the end of the spectrum where the Court should strongly lean against

allowing a new argument to be raised on appeal. However, I was, in any event, persuaded that the argument on consequences was

not well founded. That leads to the second point.

7.4 In essence, the argument put forward on behalf of Grehan and Partners was this. The contract was entered into on the 27th

September, 2000. On the basis of his affidavit evidence, Mr. Keohane accepted that, by January or February of the following year, he

was aware that the written contract was with Studley. The scheme provided for in the contract had a completion or closing date of

the 31st March, 2001, by which time the full purchase price was required to be paid over and in return share transfers and other

supporting documentation were to be provided to the purchaser.

7.5 Counsel argued that this was, therefore, clearly, a so-called “no transaction” case (for which see, for example, ACC Bank v.

Johnson [2010] IEHC 236). On that basis, it is said that the proper analysis of any adverse consequences of the alleged negligence or

breach of contract required one to look at the situation on the basis that, had Mr. Keohane been properly advised, he would not have

entered into the contract at all. On that basis, it was argued that there could have been no adverse consequences for Mr. Keohane.

However, counsel for Mr. Keohane suggested in argument that there was a credible basis for believing that, given that there were

many meetings between Mr. Hynes, Grehan and Partners and Mr. Keohane, a contract could have been procured which was with Mr.

Hynes personally and which did not have the alleged failings present in the contract as actually entered into. It is no part of the

function of this Court to express any view on whether such an argument might succeed. Indeed, it might well be that, had the

consequences issue been raised in the High Court, some additional evidence might have been put before the Court on Mr. Keohane's

behalf in that regard. I was, however, satisfied that it did not necessarily follow from the accepted facts of this case that this would

be found to be a “no transaction” case. At a minimum, I was satisfied, therefore, that it is not clear (even on the basis of what were

said to be uncontested facts) that Mr. Keohane might not be able to establish adverse consequences. On that basis alone, I was

satisfied that the claim was not bound to fail. There may, indeed, be other bases on which the consequences argument might be met

on behalf of Mr. Keohane at trial. But all those issues are ones for a trial and not for a motion to dismiss. That leads to the third point.

7.6 It did not seem to me to be necessary to reach a final conclusion on whether, at the level of principle, it might be appropriate to

dismiss as being bound to fail a claim where, as here, it is accepted that there is a stateable basis for establishing breach of duty or

breach of contract but where the only basis put forward for suggesting that the claim was bound to fail concentrated on

consequences.

7.7 Likewise, I was satisfied that it was not necessary to reach a final conclusion on whether it was appropriate to permit what I was

satisfied was a new argument to be raised for the first time on appeal since I was satisfied that that new argument would not avail

Grehan and Partners in any event.

8. Conclusions

8.1 For those reasons, I was satisfied that the trial judge had wrongly engaged with the facts in an impermissible way and that the

trial judge's reasoning in dismissing these proceedings as against Grehan and Partners as being bound to fail could not be sustained.

8.2 Even on the basis of permitting (without deciding that it was appropriate so to do) a new argument to be raised, I was not

satisfied that the lack of consequences argument put forward on behalf of Grehan and Partners was such as made these proceedings

bound to fail.

8.3 Finally, it is necessary to return to the question of the position in respect of the claim against Mr. Hynes. I note that Mr. Hynes

appears to have been served with the notice of appeal. It seems clear that an order to dismiss the claim as against Mr. Hynes could

not validly have been made on an application brought solely by Grehan and Partners in circumstances where no like application was

brought before the High Court on behalf of Mr. Hynes. Subject to clarifying with counsel as to the status of the appeal against the

order insofar as it related to the claim against Mr. Hynes (given that there was no appearance on behalf of Mr. Hynes at the appeal) I

would be minded to allow that aspect of the appeal as well.