Michael Foley (plaintiff) v. Catherine Smith (defendant)
Practice and procedure - Application to set side on grounds of res judicata - Plaintiff instituted High Court proceedings against defendant prior to the issue of proceedings by the defendant in the District Court - Judgment obtained by defendant in District Court where plaintiff neither present nor represented - Whether decree of District Court binds the High Court where both sets of proceedings arise from same incident.
The High Court (before Mr Justice Lavan): judgment delivered July 16th, 2004.
The doctrine of res judicata is based upon the principle that a party should not be allowed to re-litigate a matter that he has already had an opportunity to litigate. Public interest requires finality in litigation and the private right of an individual to be protected from a multiplicity of suits. However, sympathetic consideration must be given to the position of a plaintiff who, on the face of it, is exercising his right of access to the courts. The operation of the principle of res judicata requires the court to look at the competing interests of the parties. A party should not be denied his constitutional right of access to the courts where injustice might result, as by treating a party as bound by a determination against his interests in proceedings over which he had no control.
The High Court so held in refusing to grant an order dismissing the plaintiff's claim.
Martin Dully, BL, for the plaintiff; Colm O'hOisin, BL, for the defendant.
Mr Justice Lavan commenced his judgment by stating that the defendant sought an order setting aside the plaintiff's claim on the grounds that the matters in question in the proceedings were res judicata. In May, 2000, the plaintiff instituted High Court proceedings against the defendant following a road traffic accident. In May, 2002, the defendant issued District Court proceedings against the plaintiff, with the plaintiff's insurers acting for him in that regard. However, due to an error on the part of the plaintiff's insurers, the plaintiff was neither present nor represented in the District Court when judgment was obtained against him.
Mr Justice Lavan stated that the issue before the court was whether or not the decree of the District Court binds the plaintiff in the High Court proceedings against the defendant, where both sets of proceedings arose out of the same incident.
Mr Justice Lavan then set out the submissions made on behalf of the parties. It was submitted on behalf of the plaintiff that it was not the plaintiff's omission that he was unable to defend the District Court proceedings; rather, it had been his intention to do so. Further, for the plaintiff, it was submitted that the issue that the defendant argued as being res judicata, had never been subjected to the scrutiny of a fully contested hearing, and consequently, the plaintiff had never had the opportunity to respond to such. It was also submitted that the solicitors for the defendant failed to inform the plaintiff, within a reasonable period such as to allow him to appeal, that judgment had been entered against him.
Mr Justice Lavan stated that counsel for the plaintiff cited the decision of Keane J. in McCauley v. McDermott 2 ILRM 486 wherein the two main principles forming the doctrine of res judicata were set out as firstly, the general interest the community in the termination of disputes and in the finality and conclusiveness of judicial decisions, and secondly, the right of an individual to be protected from a vexatious multiplicity of suits at the instance of an opponent. Counsel for the plaintiff suggested that that the application by the defendant ought to be considered in relation to an assessment of the conflicting rights of the two parties, namely the constitutional right of the plaintiff to access the courts and alternatively, the right of the defendant to be protected from a vexatious number of suits from an opponent.
Mr Justice Lavan stated that in response to the assertion by the defendant, to a right of protection against a multiplicity of actions arising out of the same incident, counsel on behalf of the plaintiff referred to the Supreme Court in Ahmed v. The Medical Council 1 ILRM 372, wherein Hardiman J. quoting from the decision of Johnson v. Gore Wood & Co. 2 WLR 72, stated that abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them.
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. In the Ahmed case Hardiman J. continued, at p.386:
"Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for the determination of his civil rights or liabilities. This point has a particular resonance in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, 1950."
Mr. Justice Lavan stated that the decision in Ahmed suggests that the law applicable to both the principles of abuse of process and issue estoppel is interchangeable, and thus both relevant and persuasive.
In response to the argument put forward by the defendant that the decision of Cox v. Dublin City Distillery (No. 2) IR 345 is authority for the proposition that a default judgment does give rise to issue estoppel, counsel on behalf of the plaintiff contended that the decision in Cox was made prior to the enactment of the 1937 Constitution and so before any guarantee to a right of access to the courts. Counsel on behalf of the plaintiff submitted that the judgment of Hardiman J. in Ahmed is to be preferred, in that it encourages a case by case approach, allowing the examination of the competing rights concerned to determine the outcome. The plaintiff further submitted that he does have a constitutional right of access to the courts and that an injustice would occur to the plaintiff if the defendant was successful in his application. Finally, the plaintiff submitted that the proceedings amounted neither to a vexatious suit nor a part in a multiplicity of suits directed against the defendant and thus from which the defendant ought to enjoy the protection of the court.
Mr Justice Lavan stated that the defendant sought to dismiss the plaintiff's claim on the grounds that the matter in issue in the proceedings are res judicata. The issue, as submitted by counsel for the defendant, is whether or not the decree of the District Court binds the plaintiff.
Mr Justice Lavan was directed by counsel for the defendant to the requirements necessary to invoke the doctrine of res judicata in the context of issue estoppel as set out in case law as follows; firstly that the same question has been decided; secondly, that the judicial decision which is said to create the estoppel was final; and thirdly, that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. Counsel also cited the decision in Sweeney v. Bus Atha Cliath/Dublin Bus, Unreported, High Court, O'Neill J., January 30th , 2004. In Sweeney , the claim by the defendant asserting that the plaintiff's claim was barred by virtue of the doctrine of res judicata failed. In that case the defendant had issued circuit court proceedings against the plaintiff, which were subsequently settled and an order was made striking out the proceedings. O'Neill J. held that a strike out of the proceedings was not a judgment given or a decision made. The court rejected the res judicata argument and then went on to look at whether it would be an abuse of process of the court to allow the plaintiff to continue in the High Court proceedings.
The plaintiff had not participated in the Circuit Court proceedings and was not aware of the intention to settle the Circuit Court proceedings. In such circumstances, O'Neill J. determined that it was not an abuse of process to allow the High Court proceedings to continue. Counsel for the defendant argued that the decision in Sweeney is distinguishable from the instant case, in that no decision or judgment was made in the earlier proceedings in Sweeney. In the present case, the District Court had heard evidence and pronounced judgment, and the plaintiff had been aware of such proceedings.
Mr Justice Lavan stated that the doctrine of res judicata is based upon the principle that a party should not be allowed to re-litigate a matter that he has already had an opportunity to litigate. It is based on the principle of public interest that requires finality in litigation and the private right of an individual to be protected from a vexatious multiplication of suits. The situation in the present case is such that the High Court proceedings were in being prior to the initiation of the proceedings, on the part of the defendant, in the District Court.
Furthermore, it is clear that the plaintiff had the intention of defending the District Court proceedings, but due to an omission on the part of his insurers, was unable to do so.
Mr Justice Lavan said that the operation of the principle of res judicata requires the court to look at the competing interests of the parties, namely the constitutional right of the plaintiff to access the courts and the opposing right of the defendant to be protected from a multiplicity of suits from an opponent. Mr Justice Lavan stated that this is the principle as set down by Keane J. in McCauley v. McDermott 2 ILRM 486 at p.498:
"In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgment to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled again by a law suit which has already been decided."
Mr Justice Lavan stated that in the instant case, it was clear that an injustice would be caused to the plaintiff if the court were to allow the decree of the District Court to overrule the High Court proceedings and he refused the request for an order dismissing the plaintiff's claim on the ground that the matters were res judicata.
Solicitors: M.J. Bannon & Co (Dublin) for the plaintiff; Collins Crowley & Co. (Dublin) for the defendant.
P.J. Breen, Barrister