Supreme Court allows appeal on costs but affirms High Court order to transfer contract claim to non-jury list.

THE SUPREME COURT

[High Court Record No. 2006/2002 P]

[Appeal No. 24/2011]

Denham C.J.

MacMenamin J.

Charleton J.

BETWEEN:

KEVIN TRACEY,

T/A ENGINEERING DESIGN & MANAGEMENT

PLAINTIFF/APPELLANT

AND

MICHAEL BURTON, CHARLES O’CONNOR,

AND BURTON & O’CONNOR LIMITED, AND FPQ CONSULTING ENGINEERS

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 25th day of April, 2016

1. This is an appeal against a judgment of the President of the High Court, Kearns P., delivered on the 6th December, 2010. In that ex

tempore decision (which is referred to in more detail below), Kearns P. ordered that a notice of trial before judge and jury dated the

28th October, 2008 be vacated, that the plaintiff’s (hereinafter the appellant) proceedings be transferred from the Dublin Jury List to

the Dublin Non-Jury List, and that the appellant pay the respondents the costs both of the motion, and the order made thereunder,

when taxed and ascertained.

2. The appellant is a chartered engineer by qualification; he was allegedly formerly entered into a contractual arrangement with the

respondents, a firm of consulting engineers. I make no comment on the nature of the contract. Whether it was a contract of service,

or for services, is immaterial. The appellant describes the agreement as a contract for services. This contract was terminated. He

brought proceedings seeking damages from the termination of this contract. The President held that the proceedings were not

defamation proceedings, that the appellant had no right to a jury trial, and, for that reason, ordered the matter should be transferred

to the non-jury list.

3. Two issues arise in this appeal against that order: first, whether the High Court should have proceeded with the hearing in the

appellant’s absence; second, whether these proceedings can properly be described as “defamation” proceedings which, the appellant

contends, entitle him to a trial with a jury.

The Plenary Summons

4. The order appealed against was a step in protracted litigation, originally issued by the appellant as long ago as the 9th May, 2006,

now some 10 years ago. The appellant, a litigant in person, made the following claim in the plenary summons:

“The plaintiff’s claim is for damages for breach of contract, financial loss owing and overdue, damage to his good

character, damage to his good professional name and status, emotional and psychological damage, acute disruption to

his life, distress, inconvenience, severe upset and expense, caused and occasioned to him by reason of serious

wrongdoing on the part of the defendants, their servants or agents, in or about their termination of the contract for

services with the plaintiff, together with interest pursuant to Statute and cost.”

5. Even from the outset, therefore, it is evident that the precipitating event for the proceedings was the alleged wrongful termination

of the contract. Three years elapsed between the time of the plenary summons and the statement of claim herein, delivered on the

20th April, 2009.

The Statement of Claim

6. The statement of claim is lengthy and carefully drafted. It sets out a series of allegations in great detail. The appellant says that

he was employed by the respondents under a contract for services, which was finalised in writing on the 24th February, 2004. The

Statement of Claim sets out the terms of the contract, including hourly rates and profit sharing arrangements. It alleges that the

respondents confirmed to the appellant that they were in financial difficulties requiring a reduction of fees to him, and that he was

given an assurance that they (the respondents) would pay outstanding amounts due to him at a later date. The appellant pleads

that, on or about the 4th October, 2004, he was called to a meeting-room and told that his contract was being terminated without

any reason, and later he was offered 16 weeks pay in lieu of notice, in accordance with the contract. The Statement of Claim

describes subsequent events over a period of 3 weeks, during which time, it is said, the appellant’s personal property was removed

from the respondent firm’s premises, and he was prevented from working any further there as a qualified chartered engineer.

7. The statement of claim does include a plea that the appellant was exposed to public ridicule, humiliation and mental distress; but

only in so far as, it is alleged that on the day the contract was terminated the firm’s staff lined up at the windows and stared at him

as he transferred his belongings from the office to his car. There are pleas of conversion of property. It is said that the respondents

dishonoured pledges to pay the appellant on outstanding invoices. Various heads of general and special damage are pleaded, giving

rise to sub-heads of liquidated sums. However, there are no words pleaded which might be construed as being defamatory. The height

of any such claim is the alleged exposure to humiliation as to the manner in which the appellant had to pack his goods into his car.

8. At the conclusion of the Statement of Claim, there is a sub-heading “damages claim”. Twelve causes of action are pleaded. These

are:

(1) fundamental breach of contract for services,

(2) breach of trust,

(3) breach of duty of care/negligence,

(4) gross humiliation, intimidation and embarrassment,

(5) harm to the plaintiff’s excellent professional name and standing within the industry, and his good character,

(6) financial loss,

(7) loss of profit,

(8) loss of opportunity,

(9) conversion of personal and intellectual property,

(10) nuisance,

(11) mental distress caused to the plaintiff,

(12) a range of special damages, many unquantified, but insofar as identified totalling a sum of €825,843.

9. A fundamental question which arises is whether, on these pleadings, there is sufficient pleaded material for them to be described as

“defamation proceedings”, or even proceedings involving defamation of character. In Duncan and Neill, the classic work on

Defamation, the authors wrote:

“2.01 In order to establish at cause of action in an action for defamation, it is necessary to show that the words

complained of were defamatory. It is true that defamatory gestures and defamatory sounds may be slanderous. There

may be an occasion when defendants so conduct themselves as to convey a defamatory meaning about the plaintiff to

third persons, giving rise to an action for slander.” (see Duncan and Neill, Butterworth 1983, 3.04)

The tort of defamation is now defined by s.6(2) of the Defamation Act, 2009. The essential element, both before and after that

statutory reform of the civil wrong, is that, generally, there must be some statement that tends to injure a persons reputation in the

eyes of reasonable members of society.

10. Classically, a defamatory statement could consist of words but also, perhaps, conduct, such as an imputation that a plaintiff was

guilty of, or was suspected of guilt of a criminal offence, justifying arrest to all those present in a betting shop. But here, in the

absence of any plea of defamatory words, what is the “conduct” alleged in the claim? The pleas go no further than those of emotional

harm and psychological damage, and humiliation, embarrassment and distress, which are said to have been caused, both to the

appellant and his wife, by reason of the alleged dismissal. (The appellant’s wife is not joined as a party to these proceedings).

11. Any impression that these proceedings cannot properly be characterised as “defamation proceedings” is fortified by the original

defence filed herein. That defence does not contain any plea regarding a claim in defamation. An amended defence, filed

subsequently, does not contain any such plea either. The most that can be said on publication (in the sense that it arises in

defamation) is to say that two employees were allegedly present at the time of a conversation, between the appellant and the first

and second named defendants, terminating his contract. It is not pleaded this was unnecessary publication, or why these persons

may have been present.

12. I mention, in passing, that the absence of any specific plea in defamation would appear to have become clear to the appellant

himself. Part of the book of appeal consists of a written memorandum by himself stating:

“At the hearing in the Supreme Court, on the 1st May, 2015, the respondents acknowledge(d) to the court that are

issues of defamation in the case as outlined in the statement of claim.”

I do not regard such an acknowledgment, if one was made, as determinative of the issue of law which this Court must now decide.

13. I return now to the chronology of events which occurred prior to the High Court order now under appeal. A number of procedural

mis-steps appear to have taken place between 2006 and 2010. There were significant elapses of time between each step in the

proceedings. It is unclear whether any notice of intention to proceed was served by the appellant at any point. No point is made on

this. The issue herein came to a head when the claim was, ultimately, set down to be tried by a judge and jury, which steps became

the subject matter of Kearns P.’s judgment on the 6th December, 2010.

14. However, it is necessary now to look at a second dimension to the appeal. The appellant was not present, nor represented, when

the order appealed against was made. He claims the judge was biased against him, first in having previously required satisfactory and

clear medical certificates prior to the hearing, scheduled for the 6th December, and second in proceeding to determine the issue of

the mode of trial in the appellant’s absence.

15. The appellant now says he was seriously ill during the year 2010. He says he was in correspondence with a number of judges of

the High Court on this illness. It is unclear whether this correspondence concerned this, or a number of other proceedings in which he

is involved. The appellant identifies, by name, other such judges who received communications from him or his wife on this matter

during that year. He states that he never failed to appear in court when he was fit. He says now, that on the occasion when the

matter came before Kearns P. on the 6th December, 2010, a friend of his, Sean Ryan, was late getting to court because of extremely

snowy conditions. However, there is no affidavit evidence as to when Mr. Ryan did arrive at court, or what he did on finding the order

had been made.

16. The appellant says his understanding was that the case was only in for mention on the 6th December, 2010. It does not appear

to be disputed that the President had directed that a comprehensive medical certificate be available for that day, however. The

appellant refers also to the fact that, on a previous occasion when an order was again made directing that the matter should be dealt

with by a judge and jury, the respondents did not appear. This prior order was, apparently, vacated.

17. One point is, however, clear. It is that the issue decided on 6th December, 2010, was whether the order directing a jury trial

should stand. This was, obviously, an issue which touched on the appellant’s right of audience in, and right of access to, the Court,

including the principle of audi alteram partem. But, equally important is the fact that a costs order was made on that occasion

against the appellant. It would now appear, (albeit with hindsight) that there was, in fact, some form of explanation available,

however unsatisfactory, both for the appellant’s absence, and also for the absence of his representative. This Court has been told

Mr. Ryan was “delayed”. We have not been told precisely how Mr. Ryan, or the appellant, ascertained what had happened, without

even going to the question of whether Mr. Ryan had any right of audience, or whether the court would, in any case, have accepted

what Mr. Ryan might have had to say in the admitted absence of a comprehensive medical certificate identifying the nature of the

appellant’s illness.

18. The fact that the appellant is a litigant in person does not alter the duties he owes a court, or his obligation to comply with the

rules of court. That fact does not alter, either, the procedure which would normally be followed in a case like this. Where a judgment

or order is made in the absence of one party through inadvertence or mistake, the accepted procedure is for that party to explain

such absence to the court, and immediately apply to have such judgment or order set aside. The appellant did not do this, either

himself, or, (however irregularly), through a proxy. It is evident that he must, soon thereafter, have become aware that Mr. Ryan had

not attended in court. To reiterate, there is no information as to when, precisely, the appellant became aware of the President’s

order. Instead of applying to set aside that order, however, the appellant appealed to this Court. Inevitably, this caused delay.

The High Court Judgment

19. It is now necessary to deal with what was said in the High Court judgment under appeal. The President observed that the

appellant was an experienced serial litigant, and that this was one of a number of cases which he was maintaining. He described the

application as being one to transfer a claim for damages for wrongful termination and breach of contract for services, from the jury

list to the non-jury list, brought on the respondent’s application. The President observed that there had been repeated adjournment

applications in this, and other pieces of litigation in which the appellant was involved. These were, he pointed out, referable to Mr.

Tracey’s inability, or incapacity, to attend court through illness. The President referred to correspondence which he had received from

the appellant’s wife in September and October, 2010, saying that the appellant was ill, and also to the fact that, on occasion, a

person said to be representing the appellant had attended court and handed in a letter from the appellant’s general practitioner,

saying that he would be under medical care for the next 6 months, during which time he would be unable to conduct his affairs.

20. The judgment refers to the fact that, at a previous “mention date”, the 8th November, 2010, the President had directed that he

be furnished with a comprehensive medical report setting out precise details of the appellant’s illness, to be furnished to the court

before the 6th December, 2010. The judgment recites that on the same date, 8th November, 2010, the President had indicated to a

gentleman who attended court on behalf of Mr. Tracey, that, in the absence of a medical report of a detailed nature, any litigation in

which Mr. Tracey was involved was likely to be dismissed. I emphasise the last word “dismissed” in that it indicates that what was in

question on the 6th December, 2010 was by no means a routine listing for mention. Such indication was given in circumstances

where, apparently, neither the appellant’s wife, nor the gentleman who attended court, nor the report of the general practitioner,

had, on those earlier dates, given the court any clear indication of the nature of the appellant’s illness. A previous general

practitioner’s medical report was, the President considered, entirely inadequate.

21. Up to the 6th December, the President had acted entirely correctly in the exercise of his discretion. There is no indication of bias

or any impropriety. As and from the 8th November, 2010, the appellant must be taken as having been well aware that the onus was

on him to provide a fully comprehensive medical report. He does not say otherwise.

22. But by the 6th December, 2010, the High Court still had no clear explanation as to the nature, gravity or likely duration of the

appellant’s illness. There was no adequate information as to why he himself, or any representative of his, was absent, or why there

was no comprehensive medical report. The President ordered, therefore, that the notice of trial dated the 28th October, 2008, be set

aside, and directed that the proceedings be transferred from the Dublin jury list into the non-jury list. He awarded costs against the

appellant. There can be no doubt that the judge acted entirely correctly on the information available to him, in an area where he was

exercising the court’s inherent discretion to conduct and manage a procedural step in litigation. The appellant filed a Notice of Appeal

against this order. There was no application to set aside the judgment, and costs order, which could have been done within days.

23. In fact, after the notice of appeal dated the 24th January, 2011, was filed, no further steps took place in the appeal for a

considerable time. No book of appeal was filed. The appeal was not certified as ready to proceed. No application was made for priority

in the Supreme Court list.

24. On the 18th February, 2015, the Supreme Court office sent a letter to the appellant, indicating that the office was conducting a

review of all appeals which remained uncertified, with a view to ensuring that there was no undue delay with proceeding with any of

the appeals, and disposing of those which it was not intended to pursue. The matter was listed before this Court on the 13th March,

2015 in order to ascertain the position.

25. As a matter of fairness to the appellant, however, it must be recorded now that a letter was made available to this Court in the

appeal. This letter was dated the 2nd December, 2010. I accept the letter at face value. It was addressed to the President of the

High Court, and written by Ms. Karen Tracey, the appellant’s wife. It indicated that, as of the 2nd December, 2010, no further medical

report had been received, despite efforts to obtain one. Ms. Tracey apologised for the delay, but stated she had no control over the

matter, and asked the Court to rely on the previous medical report furnished by her husband’s general practitioner. When that hospital

consultant’s report had actually been requested was not made clear. This Court has also been referred to a number of letters, dated

from January and February, 2011, and, therefore, subsequent to the High Court hearing in question, wherein Ms. Tracey again

referred to her efforts to obtain a hospital consultant’s report.

26. The appellant says now that a series of other cases involving him came before the President on 4th March, 2011. These included

cases taken by him against the State for malicious prosecution. The appellant says that the President was disinclined to accept a

new medical report, dated 23rd February, 2011, to the effect that the appellant would be unable to work for another 6 months.

27. In fact, when the matter first came before this Court on the 13th March, 2015, a question arose as to whether, in fact, this

entire claim had actually been entirely struck out by the High Court. A confused sequence of events is said to have taken place.

28. The appellant says he and a friend visited the Central Office of the High Court, and found that this case had not, in fact, been

struck out, but rather another notice of trial had been struck out on the “1st October, 2013”. The appellant says that he was not

aware of this until the 13th March, 2015. How this might have occurred is not clear. The appellant says he was told that no court

order was, in fact, made on the 1st October, 2013, even for a strike-out of the notice of trial. Mr. Tracey says he was then advised

to file a new notice of trial in the claim. However, he informed this Court that, not unreasonably, he did not wish to pre-empt the

decision regarding the present appeal, and consequently did not seek to serve another notice of trial. It is impossible to criticise the

appellant for this decision.

29. Completing the sequence of events, this appeal came on for hearing before this Court on the 15th July, 2015, having been

mentioned in a call-over list on the 1st May, 2015, on which date, the appellant says, the respondents acknowledged there were

“issues” of defamation in the case.

The Appeal

30. For this appeal, the appellant has furnished carefully thought out and detailed submissions. He contends now that his case

concerns a breach of “an employment contract” “involving defamation of the appellant by the respondents, and further defamation

by them against the appellant.” But, this contention is not part of the pleadings; rather, it is a submission. He relies on the European

Convention on Human Rights Act, 2003, Schedule 1, Article 6.1; the Irish Constitution, Article 40.1 and Article 40.3.1., and a range of

case law, to which it is unnecessary to refer in detail. Each authority refers to well known principles of law. Certain specific

authorities are referred to in more detail below.

31. The appellant now submits that the learned High Court judge was biased against him in previously rejecting medical certificates;

that the High Court judgment indicated a predisposition on the judge’s part to strike out or dismiss the proceedings; that the judge’s

unwillingness to accept the word of a general practitioner regarding the appellant’s medical condition was surprising; and that

explanations had already been given for the fact that a consultant’s report had not been available. He says that on the 4th March,

2011 the President rejected a renewed, updated medical certificate dated the 23rd February, 2011, which said that the appellant

would not be able to work for 6 months. The appellant submits that the principle of audi alteram partem was not observed. He cites

Dellway Investments Limited & Ors v. NAMA & Ors [2011] I.E.S.C 4, [2011] 4 I.R. 1; The State (John Joseph Furey) v. Minister for

Justice and Attorney General [1988] I.L.R.M. 89, in this regard. He says that the case was listed for mention only on the 6th

December, 2010, and not for hearing. He contends that the President had no jurisdiction to determine the matter.

32. I entirely reject any imputation that the President of the High Court was biased, or in any way acted improperly. The true

question here, albeit raised only with some degree of hindsight, is can justice now be said to be seen to be done, even though it is

impossible to conclude the President did anything wrong on the information available. The appellant’s claim was not, in fact,

dismissed; instead, a procedural order of far lesser import was made; one, moreover, which as this judgment now explains, was a

correct one.

33. On the issue of a right to a jury trial, the appellant cites McMullan v. Mulhall and Farrell [1929] I.R. 470, and Bennett v. Crane

[1948] Irish Jurist Reports 28. He submits that he was entitled as of right to a jury trial, because there is a defamation aspect to the

case, and he now says, words imputing unfitness for office were spoken by the respondents on the 19th October, 2004. But, no such

words are pleaded in the Statement of Claim. No claim in “defamation”, or in the guise of libel or slander, in terms, is to be found in

any of the pleadings.

34. There can be no doubt that there is a right to jury trial in cases of defamation, properly so called. The Court of Appeal, (Peart J.,

Irvine J. and Hogan J.), concluded this was a statutory right in Lennon v. HSE [2015] IECA 92. That court had to consider the point in

circumstances where two separate sets of proceedings had been issued by Mr. Lennon. The appellant heavily relies on this decision,

contending that it shows he too is entitled to a jury trial as of right.

35. The judgment in Lennon, undoubtedly, considers a range of legal authorities and statutes in relation to the right to jury trial in

defamation cases, properly so called. But, crucially, it deals with proceedings in which a claim in defamation has actually been

brought and pleaded.

36. In Lennon, the Court of Appeal, by implication, in effect, overruled certain previous procedural judgments of the High Court, which

included claims for defamation, or defamation combined with other claims. (See, for example, Bradley & Ors (t/a Malcomson Law) v.

Maher [2009] IEHC 389 (per Clarke J.). The Court of Appeal considered the approach previously taken by the High Court in Bradley

was erroneous, in that, such decisions proceeded on the premise that entitlement to jury trial in defamation proceedings was not as

of right, and that any such entitlement should yield to the demands of case management and the efficient operation of the

administration of justice (see paragraph 29).

37. Speaking in the Court of Appeal, Hogan J. at paragraph 32 concluded that the High Court had no such discretionary jurisdiction,

and the right to jury trial in defamation proceedings was guaranteed by statute. For those reasons, that Court declared the plaintiff in

that case was entitled to a jury trial in respect of the defamation proceedings, although an order had been made on a case

management basis to the contrary.

38. It is not necessary to express any view in relation to the correctness, or otherwise, of the decision in Lennon, and I do not do so.

But, two vital points of distinction from that decision are clear. First, that judgment addressed a situation where there were two

separate sets of proceedings. Second, and vitally, there was no doubt that one of these cases was a defamation case brought by

Mr. Lennon. The, quite separate, question before the Court of Appeal, therefore, was how those two sets of proceedings, one of

them a defamation case, properly brought and framed, were to be case-managed? These are critical distinctions.

39. The true question which arises in this appeal is what is the nature of these proceedings, as actually pleaded? I am unable to

accept that these proceedings can, properly, be characterised as “defamation proceedings”. There is no such plea. Defamation

requires explicit and clear pleading. It cannot be implied or inferred. The conduct referred to is entirely peripheral to the main issue in

the appellant’s case, which is an alleged breach of a contract for services.

40. No motion to amend the pleadings, so as to specifically plead defamation, was ever brought in the High Court. Such a motion

cannot be brought for the first time in this Court. Such amendment cannot be brought about, either, by some form of “collateral”

process in this Court. Even if, hypothetically, this Court were to allow the case to be now regarded as a defamation action, clear

prejudice would now accrue to the respondents, who have not made any defence to such a claim, in either the original or the

amended defence. Many years have now elapsed since the events in question took place. As well as clear pleading, time and memory

of words spoken, or precise conduct, are of the essence in a defamation action. There is a short limitation period. The elapse of years

which has occurred was not the respondent’s fault.

41. A Court sometimes exercises a degree of latitude towards litigants in person. But the appellant is a very experienced litigant. In

his submissions, the appellant refers to the fact that he has been involved in some thirty-one cases involving, inter alia, malicious

prosecution.

42. It does not lie within the power of this Court to now, effectively, “transform” this claim into “defamation proceedings”, or even a

“part-defamation” proceedings. To do so, would be to wrongly assume that the Statement of Claim had been amended to plead

defamation. Time-limitation questions would undoubtedly now arise.

43. The question is, rather, whether or not any part of the order granted by the President in 2010 was in error, even if that error

appears only in hindsight? I again reject any contention that the conduct of the President was other than entirely proper. He engaged

in a process where the appellant had been given ample and clear warning of the fact that his claim might be dismissed in the event of

there being no proper medical certificate. The courts are entitled to monitor and police their own proceedings to avoid drawn out

litigation. Acting within jurisdiction, the judge did not dismiss the claim, but rather simply made an order setting aside notice of trial

with a jury.

44. Giving the appellant the maximum latitude, I do, however, have a residual concern that justice be seen to be done. An order for

costs was also made against the appellant. Should the entirety of the judgment and order made in the appellant’s absence, and

concerning him, stand in the circumstances, as they now emerge? I think not. I would, therefore, exceptionally, set aside that part of

the High Court judgment and order which awarded costs, and now remit the balance of this case to the High Court. I point out again

that this Court has now given the appellant an extraordinary degree of latitude.

45. Certain recent incidents which have occurred in other court proceedings make it necessary to reiterate some matters which are

fundamental. In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of

such litigation is so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where

there is such egregious misconduct either before court, or in court itself, as to raise questions as to whether the right of access to

the court should be limited, or, in extreme cases, whether a case should actually be struck out. Put simply, the questions are whether

there is abuse of process to such a degree that a claim simply should not be allowed to proceed, or whether such a claim should be

allowed to proceed only under identified procedural conditions, or in a manner proportionate to the circumstances, while seeking, as

far as is practicable, to vindicate that constitutional right to litigate proceedings. If a litigant engages in conduct amounting to

contempt of court, either with regard to the court itself, or court officials, that too may have to be addressed in the same way. The

time has long past where it is either necessary, or desirable, to permit litigants, or their legal representatives, to read documents or

submissions “into the record of the court”, or where court time, a scarce public resource, is unnecessarily wasted. Court time is not

solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues. Time allotted to

the parties may be apportioned by a judge fairly, prior to, or during a hearing. But, such time must be predicated on a realistic

appraisal of the time a case, or matter, should, ordinarily and properly, take. As Denham J. pointed out in O’Reilly McCabe v. Minister

for Justice,& Patrick Cusack Smith & Co (Agents of Thomas McCabe, Ward of Court & Minor) [2009] IESC 52 at par. 33, the

constitutional right of access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must

also protect the rights of opposing parties; the principle of finality of litigation; the resources of the courts; and the right to fair

procedures which accrue to each party to litigation, as well as plaintiffs. It is an injustice that defendants or plaintiffs be exposed to

repeated and vexatious litigation, in which either party incurs unnecessary legal costs which may not easily be recoverable against an

offending party. The public have a right to a court system which operates effectively and expeditiously in the public interest, while

ensuring that justice is administered as the Constitution requires. Finality is necessary in the interest of justice. It must be clearly

understood that one adverse ruling, or even a series of adverse rulings, by a court is not, without significantly more, to be regarded

as grounds for claiming either subjective or objective bias.

46. As to persistent frivolous and vexatious proceedings, useful principles were outlined by O’Caoimh J. in the High Court in Riordan v.

Ireland No. 5 [2001] 4 I.R. 463 at 463, 466 & 471; and see my judgments in the High Court in McMahon & Sharma v. W. J. Law &

Company LLP & Ors [2007] IEHC 51 at par. 21, [2007] IEHC 194 at paragraph 29.

47. In addition to the factors outlined in those decisions, however, a court is entitled to generally have regard to the manner in which

proceedings are conducted. While the jurisdiction to strike out proceedings for abuse of process, in one form or another, is to be

exercised sparingly, it is a sanction which cannot be ignored. Similarly, while parties have a right to defend proceedings, it may be

necessary to identify the manner in which defendants’ rights are best vindicated. A court may, under the Constitution, take whatever

proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts,

themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other

litigants.

48. Subject to the Constitution, the administration of justice in public does not debar a court from assisting litigants, and their

advisors, by considering the papers in a case beforehand; by sifting through the documentation in order to see what is relevant and

what is not; by identifying the issues which truly fall to be decided; and by directing whatever written submissions may be necessary

in order to ensure justice is done, effectively and efficiently. Litigants, and their legal representatives, must abide by rulings as to the

apportionment of time, or length of submissions, and other matters identified herein, or run the risk of the imposition of proportionate

conditions on the litigation, or more radical sanctions, such as wasted costs orders, adjourning proceedings until proper procedures

have been carried out, or, in extreme cases, actually striking proceedings out for abuse of process.

49. I do not say these considerations are true of this case. Here every possible step has been taken to facilitate the appellant in this

litigation. There can be no further delay. I bear in mind that the appellant has been an assiduous attender in court at each step of

this appeal.

50. I would, therefore, set aside the High Court order on costs, but otherwise affirm that judgment and order. It follows that this

claim, under a contract for services, should be remitted to the High Court, and heard by a judge sitting alone. A number of other

points arise, which the High Court may conclude should be dealt with as preliminary issues as part of case management.

51. First, the respondents are named as Michael Burton and Charles O’Connor, and Burton & O’Connor Limited and FPQ Consulting

Engineers. Are all the parties necessary to the proceedings?

52. Second, and in the context of the above, any question of any personal liability of the first and second named defendants should

be clarified.

53. Third, the question of whether there was accord and satisfaction may have to be determined. It is pleaded at paragraph 30 of the

defence that a cheque in the sum of €91,528.82, being the respondents’ calculation of the sum due to the appellant, was forwarded

to the appellant’s (unnamed) solicitors in September, 2005. This cheque, it is said, was cashed by or on behalf of the appellant on the

29th September, 2005. It is unclear who were then the appellant’s solicitors, or what, if any, correspondence took place at that

stage; if the cheque was indeed cashed, and if so, what, if any, sums are outstanding.

54. Fourth, it is necessary that the losses which are claimed by the appellant should be properly quantified and vouched. I note that

there has been a lodgement; however, that lodgement was made in the absence of any full quantification and valuation of the losses

claimed.

55. I would, therefore, allow the appeal on the issue of costs only, set aside the High Court judgment and order in that regard, but

otherwise affirm the High Court order. I would remit the balance of the case to the High Court (judge alone) for determination of all

the issues in question, if deemed necessary, for case management; and also, if deemed necessary, for determination of preliminary

issues.