Bernadette Ennis (plaintiff) v Colm Butterly (defendant).

Practice and Procedure Claim - Application to strike out proceedings - Circumstances in which a court may exercise its inherent jurisdiction to strike out proceedings or any pleading.

Family Law Meaning of "family" - Agreement to marry and to live together as man and wife pending legislation enabling the dissolution of existing marriages - Whether agreement enforceable.

The High Court (before Mr Justice Kelly); judgment delivered 26 July 1996.

WHERE an application is made by a party to strike out proceedings or pleadings initiated or filed by the other party the appropriate test to be applied by a court in determining the application, is to inquire whether, as a matter of law, the impugned party's case must fail. In applying the test the court must assume, for the purposes of the application, that every fact pleaded by the respondent is true and capable of being proved at trial. Further the court's jurisdiction to strike out proceedings or pleadings in this manner is one that ought to be exercised sparingly in circumstances where the impugned claim or assertion is clearly unsustainable.

Having regard to Article 41 of the Constitution of Ireland 1937 section 1 of the Family Law Act 1981, which abolished the cause of action of breach of promise to marry, and as a matter of public policy, a breach of an agreement to live together as man and wife or a breach of an agreement to marry does not give rise to a cause of action in this jurisdiction.

Mr Justice Kelly so held in striking out the plaintiff's statement of claim in so far as it sought damages for breach of an alleged breach of a cohabitation contract and in allowing the plaintiff's claim for misrepresentation to proceed to trial.

Ciaran O'Loughlin SC and Patrick McCann BL for the plaintiff Michael McDowell SC and D.J. Hegarty BL for the defendant.

MR JUSTICE KELLY said that this was an application on the part of the defendant to have the plaintiff's amended statement of claim struck out in its entirety pursuant to the provisions of Order 19, rules 27 and 28 of the Rules of the Superior Courts 1986, which provide that a court may, inter alia, strike out any matter in a pleading that is unnecessary or scandalous or that discloses no reasonable cause of action and pursuant to the inherent jurisdiction of the court. He said that the application relied principally upon the latter inherent jurisdiction.

Having referred to a number of cases and, in particular, to the decisions of Mr Justice Costello in Barry v Buckley [1981] IR 306 and D.K v. A.K. [1993] ILRM 710 and to the decision of the Supreme Court in Sun Fat Clian v Osseous Ltd [1992] 1 IR 425, Mr Justice Kelly said that this inherent jurisdiction was recognised as one that was to be exercised sparingly and in circumstances where a claim was so clearly unsustainable that it ought to be struck out. In addition he noted that counsel for the defendant had conceded that, in deciding on the matter, Mr Justice Kelly was obliged to assume that every fact pleaded in the amended statement of claim and every fact asserted in the plaintiff's affidavit was correct and could be proved at trial.

Outlining the background to the case, Mr Justice Kelly said that the plaintiff's original claim was for damages for breach of contract, negligent and fraudulent misrepresentation and for a sum of £175,000; a declaration was also sought that the plaintiff was entitled, as beneficial owner, to one half of the value of a cheque in the sum of £350,000 and that the sum of £175,000 was held in trust by the defendant on behalf of the plaintiff. Following the initiation of the instant application by the defendant, the applicant exhibited an amended statement of claim in an affidavit and delivery of that document to the defendant had been permitted by the court. Mr Justice Kelly noted that the amended statement of claim sought damages for breach of contract, negligent misrepresentation and fraudulent misrepresentation; he said that the claim for declaratory relief had not been included and had been expressly abandoned by counsel for the plaintiff during the course of the present application.

The facts of the case which were not in dispute were that the plaintiff and defendant, who were both married but not to each other, had cohabited as man and wife from 1985 until 1993. In 1988 they had purchased a home together in their joint names and in 1993 the defendant had transferred his half share in the premises to the plaintiff. The relationship had broken down in 1993 because the plaintiff discovered that the defendant was staying with his wife from time to time. Later in 1993 the relationship began again but in 1994 the defendant was again requested to leave home and did so.

In her amended statement of claim the plaintiff alleged that they had agreed to marry if and when legislation was enacted which permitted the dissolution of their marriages; that all mortgage payments and other expenses were from the plaintiff's monies; that, when the relationship had first broken down, the defendant had offered apologies, sought forgiveness and made representations and warranties, including one that she would share in the defendant's business as a director and shareholder, intended to induce the plaintiff to agree to marry the defendant when possible and to discontinue her business and live with him as a full time housewife; that the defendant had breached the representations and warranties thereby causing loss and damage to the plaintiff.

Mr Justice Kelly said that the first relief sought in the amended statement of claim was damages for breach of contract. He said that the only contract pleaded was a two fold one of an agreement to marry and an agreement to live together as man and wife until such marriage were possible.

Counsel for the defendant had relied upon section 1 of the Family Law Act 1981, which abolished the action for breach of promise to marry; in the view of Mr Justice Kelly, this enactment was fatal to any claim by the plaintiff derived from the breach by the defendant of an agreement to marry her.

With respect to the second part of the plaintiff's claim in contract, it had been submitted for the defendant that an agreement to co-habit, whether pending a forthcoming marriage or not could not give rise to enforceable rights; that such a claim was contrary to public policy and that the claim was effectively one for "palimony". Mr Justice Kelly said that the latter term was American slang denoting compensation for a deserted party after the separation of a couple living together out of wedlock. In the United States Cohabitation contracts were rejected either on the ground of immorality or lack of consideration. However, the Supreme Court of California in Marvin v Marvin 18 Cal 3d 660 (1976) had held that a court should enforce express contracts between non marital partners except to the extent that the contract was explicitly founded on meretricious sexual services. In addition, it was held that the court, in the absence of an express contract, should enquire whether the parties' conduct indicated the existence of an implied contract. However, Mr Justice Kelly noted having reviewed other American authorities, that the decision in Marvin v Marvin was by no means universally accepted.

The position in England and Wales was, however, quite clear. In Windeler v Whitehall [1990] 2 FLR 505, it was held that a man had no legal obligation to support his mistress even if they were living together: a court had no jurisdiction to disturb existing rights of property on the termination of an extramarital relationship, however long established. In Mr Justice Kelly's opinion, the same position obtained in this jurisdiction. He said that Article 41 of the Constitution of Ireland pledges the State to guard the institution of marriage and to protect it against attack. He noted that in The State (Nicolau) v An Bord Uchtala [1966] IR 567, the Supreme Court had said that to equate the family founded on marriage with a family founded on an extramarital union would be to disregard Article 41. In those circumstances, Mr Justice Kelly said that it would be contrary to public policy to afford non marital cohabitation the same status as marriage; accordingly, as a matter of public policy, cohabitation contracts were unenforceable.

In light of the foregoing, Mr Justice Kelly said that the plaintiff's claim for damages for breach of contract must, as a matter of law, fail and he therefore struck it out.

With respect to the plaintiff's claim for damages for negligent and fraudulent misrepresentation, Mr Justice Kelly said that such a claim lay where the misrepresentation was made dishonestly (in a common law action for deceit) or negligently (in a common law action for negligent misstatement). To sustain such an action the following facts had to be pleaded and proved there must be a representation of fact made by words or conduct and with the knowledge that it is false; it must be made with the knowledge that it would be acted upon by the plaintiff in the manner causing damage to the plaintiff; it must be proved that the plaintiff acted upon the false statement and sustained damage in so doing.

Mr Justice Kelly said that these criteria were met in the plaintiff's claim to the extent that it was alleged by the plaintiff that she would become a director and shareholder in the defendant's company and share in its profits. The plaintiff claimed that, on this basis, she had discontinued her own business. In so far as this alleged arrangement was pleaded as part of the cohabitation contract, it could not he pursued by the plaintiff, but the allegation also stood alone as an action in tort. As such that aspect of the plaintiff's claim must be permitted to proceed to trial; it could not be said at this juncture, as the appropriate test demanded, that claim, as a matter of law must fail.

Solicitors: Finbar Cahill & Co (Dublin) for the plaintiff; Paul N. Beausang & Co. (Dublin) for the defendant.