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All Roads Lead to Rome: Court of Appeal upholds decision preventing reviving of historic, settled litigation

  • Ireland
  • Litigation and dispute management

27-01-2021

Overview

On 27 July 2020, the Court of Appeal handed down its decision in Mulrooney v Looney and FSNI1, an appeal from a decision of the High Court dismissing proceedings against the Second Named Defendant on the basis that they were an abuse of process. The Second Named Defendant was found to have properly relied on the rules of the Superior Courts allowing for the dismissal of proceedings on the basis that they were frivolous and vexatious (O.19r.27) and failed to disclose a reasonable cause of action (O.19r.28) and the appeal was dismissed. The case is the culmination of a long series of litigation and demonstrates that the Courts will not operate a revolving door policy for serial litigants and allow similar points be repeatedly litigated.

Background

In 1999, the Appellant’s father entered a lease which he claimed he had believed was to be for a period of 3 years. The landlord maintained that it was for a term of 5 years. The dispute ultimately resulted in Circuit Court proceedings in 2005 which determined in favour of the landlord. The Appellant and his father appealed this decision but ultimately settled the case and paid €13,500 to the landlord inclusive of costs.

In 2008, the Appellant and his father issued a second Circuit Court action against the landlord, as well as against solicitors and auctioneers who had been involved in the transaction, regarding alleged unlawful alteration of the lease. These proceedings were dismissed by the Circuit Court as being frivolous, vexatious and an abuse of process.

In 2009, the Appellant made a formal complaint to the Gardai regarding the lease, who concluded that there was no evidence of fraud.

In 2010, the Appellant and his father instructed the First Named Defendant, to obtain a report from a “Questioned Document Examiner” employed by the Second Named Defendant, an agency within the Department of Justice Northern Ireland which provides forensic laboratory services for litigation purposes. This report also found that the lease had not been fraudulently altered.

In 2011, further High Court Proceedings issued against a total of 24 defendants (not including Brendan J Looney or FSNI) which were dismissed on the basis that they were frivolous and vexatious. This decision was appealed to the Supreme Court in 2013 where it was dismissed on the basis that the Appellant’s cause of action; fraud, was the same as that which he had already settled in the 2005 Circuit Court proceedings.

The Appellant’s father died on 17 July 2013 and the Appellant issued another set of High Court proceedings in September 2015, alleging that the Gardai had failed to properly investigate the criminal complaints regarding alteration of the lease. A further forensic report from that year again found no evidence of alteration and the proceedings were dismissed in July 2017.

A fourth set of High Court proceedings were also commenced in 2015, alleging that the FSNI conducted a negligent and flawed examination of the lease. FSNI, represented by Eversheds Sutherland, filed a Motion to Dismiss.

Decision of the High Court

In dismissing the Appellant’s claim as against the FSNI, Coffey J held that the Court was satisfied that the true intent of the proceedings was to re-litigate the issue of whether the lease document of 1999 was wrongfully altered, and thereby to challenge the outcome of the Circuit Court proceedings, which the Supreme Court had already determined could no longer be the subject of litigation.

The Appellant appealed this judgement to the Court of Appeal.

Decision of the Court of Appeal

In a unanimous decision delivered by Faherty J, the Court of Appeal dismissed the Appellant’s appeal and upheld the decision of the High Court that proceedings should be struck out as against FSNI.

In so deciding, Faherty J determined the following issues:

1. The trial judge had not erred in failing to consider whether an amendment to proceedings would save them from being barred by the Supreme Court decision;
2. The current proceedings were incapable of being distinguished from the rationale applied by Clarke J in the 2013 Supreme Court Appeal;
3. The trial judge had not erred in failing to consider alleged non-compliance with s.12 of the Land Act 1965; and
4. The trial judge applied the requisite legal principles when determining the motion to dismiss.

Having considered submissions on costs, Faherty J ruled on 15 January 2021 that FSNI was entitled to the costs of the Motion to dismiss, its costs for the 2015 proceedings (which had not been previously awarded) and the costs of the Appeal.

Takeaways / Conclusion

The Court of Appeal decision demonstrates that attempts to reinstitute settled litigation will not be taken lightly and that even if different routes are explored and multiple sets of proceedings issued, to borrow a phrase from Costello J in her High Court decision, in the vast majority of cases, all roads will lead to Rome and reinstitution will not be permitted.

1 William Mulrooney v Brendan J. Looney Formerly Practising Under Title and Style of Brendan J. Looney Solicitors and Forensic Science Northern Ireland  [2020]

For further information, please contact:

Stephen Barry, Partner, Dispute Resolution & Litigation - StephenBarry@eversheds-sutherland.ie

Aidan Kirrane, Associate, Dispute Resolution & Litigation - AidanKirrane@eversheds-sutherland.ie