From a review of the relevant case law – and within the scope of the wording of order 19, rule 28 regarding ‘frivolous’ and ‘vexatious’ claims – it seems that the courts may be amenable to granting relief to dismiss proceedings where the claim falls into one of the following four (non-exhaustive) categories:
- There is no statutory or legal basis for the plaintiff’s claim,
- The doctrines of res judicata and/or Henderson v Henderson are applicable,
- The case/claim is statute barred,
- The case/claim is futile, misconceived, hopeless and/or irremediable.
Outside of order 19, rule 28, the court also enjoys an inherent jurisdiction to strike out pleadings/proceedings in some circumstances.
We are the road crew
Before considering these four categories for consideration, certain defining characteristics of the jurisdiction under both order 19, rule 28 and the inherent jurisdiction of the court should be considered.
Regarding ‘pleading’, the Supreme Court in Aer Rianta cpt v Ryanair Ltd determined that, on its plain wording, order 19, rule 28 applies only to the striking out of an entire pleading, such as a statement of claim or defence, and not part of a pleading “if the court is convinced a claim will fail”. Applications to strike out parts of pleadings would be brought pursuant to order 19, rule 27 of the RSC.
Order 19, rule 28 provides wide, but arguably vague, grounds for a defendant to bring an application to have proceedings dismissed that have been issued against him/her. The jurisdiction under order 19, rule 28 is invoked with reference solely to the pleadings.
O’Higgins CJ, in McCabe v Harding, emphasised that, in order for the rule to apply, “vexation or frivolity must appear from the pleadings alone”. Costello J in Barry v Buckley, stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”.
In contrast, and as to the inherent jurisdiction of the court, per Costello J in Barry v Buckley, “the court is not limited to considering the pleadings of the parties, but is free to hear evidence on affidavit relating to the issues in the case”.
Highway star
In Hurley v Pepper Finance Corporation (Ireland) DAC, Mr Justice Allen considered a matter that fell into this category of claim. The plaintiff issued a plenary summons on 27 January 2020, claiming, among other things:
- A declaration that, under a loan agreement dated 19 November 2001, he was a ‘consumer’ pursuant to the Consumer Credit Act 1995, and
- A declaration that a loan agreement dated 19 November 2001 and related mortgage were unenforceable by reason of section 38 of the 1995 act, which aims to prevent a creditor from enforcing a credit agreement and security unless the requirement of that part of the said 1995 act have been complied with. Section 30 of the 1995 act provides, among other things, that a credit agreement should contain a ‘cooling-off-period’ statement, while section 29 provides that part III applies to all credit agreements, other than ‘housing loans’.
The plaintiff delivered a statement of claim on 11 March 2020, and a request for particulars was raised and replied to. The claim included allegations that a loan agreement did not contain a statement in respect of the cooling-off period (which it did not). A defence was issued on 26 February 2021, which primarily objected to the plaintiff’s claim on grounds that the claim was bound to fail.
A motion was later issued by the defendant under order 19, rule 28 RSC and the inherent jurisdiction of the court. In considering it, Mr Justice Allen stated: “If … the statement of claim discloses an arguable question of law, the true test is whether the argument has a reasonable prospect of success … the onus is not on the [plaintiff] to demonstrate that he has a reasonable prospect of success, but on the defendant to show [that the plaintiff] does not.”
Ultimately, the court was satisfied that the defendant had met the requisite threshold, concluding that, among other things, as the agreement concerned a ‘housing loan’, the provisions of part III of the 1995 act were not applicable. The defendant had demonstrated that the arguments raised by the plaintiff had “no reasonable prospect of success” and the proceedings were struck out.
Interestingly, in considering costs, Mr Justice Allen was critical of the defendant issuing the motion under order 19, rule 28 after the matter was set down for trial, stating that, “while Pepper identified a fundamental flaw in the action which was capable of being – and in the event was dealt with on a motion – [the defendant] nevertheless delivered a defence and waited until after the action had been set down for trial before issuing its motion and thereby added to its own costs as well, perhaps, as [the plaintiff’s] costs”.
Practitioners should take note of the courts’ wide-ranging discretion on costs and be cautious not to delay in issuing a motion under order19, rule 28 in order to avoid any adverse costs implications.
Practitioners must strike a balance between progressing a claim to gather a plaintiff’s frivolous pleadings (and thereby increasing the chances of success of an order 19, rule 28 motion) against the potential of adverse costs findings for a delayed order 19, rule 28 motion.
Souped-up Ford
The Court of Appeal recently considered the case of KBC Bank Ireland Plc v Osborne. The plaintiff had obtained judgment against the defendant on 21 December 2015.
Mr Osborne did not appeal the judgment but rather issued separate plenary summons proceedings against the bank, which were dismissed by McGovern J by reason of their being frivolous and vexatious and disclosing no cause of action – offending against the rule in Henderson v Henderson, and being barred by section 11 of the Statute of Limitations 1957.
Mr Osborne sought to challenge matters further, including issuing proceedings against a receiver and an application to the Court of Appeal for an injunction restraining the plaintiff from executing the judgment previously obtained.
Osborne initiated a motion seeking, among other things, an order vacating the judgment already granted to the plaintiff on 21 December 2015, which motion was brought in breach of an undertaking previously agreed by Mr Osborne, via his counsel, not to bring any further motions against the plaintiff without first obtaining the leave of the President of the High Court.
That application found its way to the Court of Appeal. Mr Justice Allen exercised the inherent jurisdiction, striking out the appeal as an abuse of process in circumstances where, among other things, a challenge to the judgment previously obtained was res judicata and such challenge was brought in breach of an undertaking not to do so.
In Cunniffe v Cunniffe & Anor, Mr Justice Allen in the Court of Appeal considered an appeal of a probate matter that had been struck out in the High Court under order 19, rule 28 RSC, where the case was found to be statute barred and a claim of fraud not substantiated.
The Court of Appeal noted that it is “legislative policy of the Statute of Limitations to prevent the litigation of stale claims” and, in circumstances where the death of the parties’ father had occurred nearly 30 years previously and the action commenced on 4 May 2016, the appeal was dismissed.
Highway to hell
In 2020, Mr Justice Allen considered an application under order 19, rule 28 in Sheridan v AIB plc. The details of the case went back 40 years, but the crux of it centred on an application for banking records of two companies (Emerald Contract Cleaner (Ireland) Limited and Emerald Contract Cleaners Limited) held by AIB.
The plenary summons, dated 11 September 2018, claimed that the defendant had neglected to recognise the plaintiff’s standing as executor of Pauline Sheridan, the administrator of the estate of James Vincent Sheridan.
The plaintiff claimed relief for an order directing Allied Irish Bank plc to release documents/records to the plaintiff as administrator of the estate of James Vincent Sheridan.
Later, in February 2019, the plaintiff delivered a form of statement of claim asserting an entitlement to all the accounting documentation of the two companies and seeking declarations that the defendant had refused to accept his legal standing and that the defendant had no duty of confidentiality to its customers.
Relying on Barry v Buckley, and although noting that “if there is a deficiency in the case pleaded that is capable of remedy by amendment, the action should be dismissed”, Mr Justice Allen was satisfied that “the case is hopeless and that the statement of claim is irremediable”. The court struck out the claim.
The plaintiff appealed the judgment to the Court of Appeal, with Haughton J delivering judgment on 23 June 2022. The Court of Appeal noted that, while the plaintiff/appellant did not bring an application in the High Court to amend his pleadings to “save his claim”, he was seeking to introduce new evidence and amend the claim in the Court of Appeal.
The court summarised the action as an “action solely for discovery”. In considering the plaintiff/appellant’s application to amend his claim in the Court of Appeal, the judge noted that, “as it requires exceptional circumstances to justify the court admitting of an amendment of the statement of claim to admit the claim in the first instance, it would seem to follow that most exceptional circumstances would be required to justify an amendment to save the claim at the appellate stage”.
As the original claim and the proposed claim were “fundamentally different”, the court rejected the plaintiff/appellant’s application to amend his claim. As to the frivolous and vexatious/abuse of power aspect of the appeal, the court relied on the judgments in Barry v Buckley, Lopes v Minister for Justice, Equality and Law Reform and the Supreme Court judgment in Ewing v Ireland, which outlined six indicia of vexatious proceedings:
- The bringing of one or more actions to determine an issue that has already been determined by the court of competent jurisdiction,
- Cases where it is obvious that the action cannot succeed, or
- Cases where no reasonable person could reasonably expect to obtain relief,
- Where the action is brought for an improper purpose,
- Where the person instituting proceedings has failed to pay the costs of unsuccessful proceedings,
- Issues are rolled forward into subsequent actions repeated and supplemented.
Finding in favour of the defendant/respondent in circumstances where the claim the plaintiff/appellant was pursing is frivolous and vexatious, Haughton J dismissed the appeal.
I drove all night
The issue as to when an application to dismiss can be brought was considered in Byrne and Anor v National Assets Management Agency. MacGrath J noted that the rule is silent as to the time within which such application can be brought.
Relying on the Supreme Court decision in SM v Ireland (No 1) and noting that “undue delay may lead to an application to strike out being dismissed”, the court confirmed that it is not necessary for a defence to be filed in advance of bringing a motion under order 19, rule 28 RSC, stating “one of the purposes of the procedure envisaged under the order is to deal expeditiously and as inexpensively as possible”.
Built for comfort
The courts appear willing to strike out proceedings under its own discretion where the claim is bound to fail and/or no cause of action is disclosed. The courts may be amenable to dismiss proceedings should they fall into one of the four primary (non-exhaustive) categories listed at the start of this article (that is, there is no statutory or legal basis for the plaintiff’s claim; the doctrines of res judicata and/or Henderson v Henderson are applicable; the claim is statute barred; or the case is futile, misconceived, hopeless and/or irremediable).
It is a common defence to order 19, rule 28 applications for plaintiffs to issue an application to amend proceedings ‘to save the claim’, and it would appear from the judgments discussed above that the courts are more likely to facilitate an amendment to a claim rather than strike out proceedings, if the amendment(s) could take the claim out of the scope of order 19, rule 28 and/or the four broad categories identified above.
It also appears that an applicant can bring a motion to dismiss successfully at any point of the proceedings, which could include early stages upon receipt of a summons, but that will depend on the facts of each particular case. Practitioners should bear in mind that, if a party delays in bringing an application to dismiss, the courts may take this into consideration when considering the issue of costs.
Look it up
CASES:
LEGISLATION:
- Order 19, rule 28 of the Rules of the Superior Courts 1986
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Eoin Pentony is a partner in Edward Healy Solicitors LLP, 30 Pembroke Street Upper, Dublin 2. Edward Murray is a Dublin-based barrister specialising in commercial, chancery, banking and finance law.