Supreme Court dismisses appeal where plaintiff attempts to reopen a final land dispute via negligence claims against solicitors.

THE SUPREME COURT

323/00

High Court Record 1999 No 4776P

Murphy J

McGuinness J

Fennelly J

Between:

Robert Ewing

Plaintiff/Appellant

AND

Anthony Kelly, VP Shields & Sons Solicitors, CP Crowley & Co Solicitors, The Law Society of Ireland, Egan O’Reilly Solicitors,

Burke & Co Solicitors, The Revenue Commissioners, The Land Commission and the Minister for Justice Equality & Law

Reform.

Defendants/Respondents

Judgment of Mr Justice Francis D Murphy delivered the 31st day of October, 2001

These proceedings have a lengthy and somewhat complex history. By an agreement in writing dated the 6th day of December,

1982 William Ewing (the late father of the above named Plaintiff/Appellant Robert Ewing) agreed with Anthony Kelly (the above

first named Defendant/Respondent) for the sale to him of the lands comprised in Folio 1347 of the Register of Freeholders

County Galway (sometimes referred to as ‘The lands of Abbeyville’) for the sum of £45,000. By deed of transfer dated the 2nd

day of January 1983, the lands were transferred by William Ewing and, on the second day of May 1983, Anthony Kelly was

registered as owner thereof. In the following years it is clear that the relationship between Anthony Kelly on the one hand and

the Ewings (William and Robert) on the other hand was very unhappy.

By Equity Civil Bills one dated the 15th day of June, 1987 and the other dated the 11th October, 1988 Anthony Kelly alleged

that the Ewings had trespassed on the Abbeyville lands and obstructed a right of way to which Mr Kelly was entitled. Both

defences contained counterclaims in which it was contended that the agreement for sale dated the 6th December, 1982 and

the transfer dated the 2nd January, 1983 were invalid on the grounds that William Ewing “did not know and appreciate and was

incapable, firstly by reason of infirmity of health, mind and body, secondly by reason of influence wrongly exercised over him,

and thirdly, by lack of proper independent legal advice of knowing and appreciating the contents and nature of the said

documents and of his actions in executing the same” and on the other grounds referred to therein. The first of the defences

and counterclaims was delivered on the 13th day of October, 1988 by the above thirdly named Defendants, CP Crowley & Co.

The second defence and counterclaim was delivered on the 6th of March, 1989 by the above named fifthly named

Defendants/Respondents Egan O’Reilly & Co - a notice of a change of solicitors having been filed on the 14th day of December,

1988. After a series of interlocutory applications the two claims and counterclaims came on for hearing before Judge Cassidy in

the Circuit Court in May, 1990. The matter was apparently part heard at that time but subsequently the Ewings served a

further notice of change of solicitors as a result of which Messrs Burke & Co ( the sixthly named Defendants and Respondents)

replaced Messrs Egan & Company as Solicitors on behalf of the Ewings. Thereafter Judge Cassidy made an order for discovery

on the 12th of June, 1990. That order necessarily resulted in further delay.

Ultimately the claims and counterclaims came on for hearing before Judge Harvey Kenny in the Circuit Court on the 12th day of

June, 1996. The order of Judge Kenny recites and identifies senior and junior counsel who appeared on behalf of William Ewing

instructed by Messrs Burke & Company Solicitors and further recites that there was no appearance on behalf of Robert Ewing

the secondly named Defendant in those proceedings. By his order Judge Kenny ordered and directed (among other things) the

following:-

“1 That the two sets of proceedings between the parties (bearing record numbers E21/88 and E131/88) be consolidated.

2 Judgment in favour of the plaintiff in the terms sought at paragraphs A, B, C, D, E and F in the Civil Bill herein bearing

record number E21/88.

3 That the plaintiff do recover the costs of the proceedings from the defendants, same to be taxed in default of

agreement, to include the costs of the hearing of the action which took place on the 9th, 14th and 29th of May 1990

measured in the sum of £3,000 and that the plaintiff do recover the costs of discovery.

4 That a certificate be granted for senior counsel in the proceedings.

5 That the plaintiff is entitled to a right of way as claimed by him along the way coloured yellow on the map attached to

the Civil Bill herein bearing record number E21/88.

6 A stay of execution for a period of ten days from the date hereof and in the event of an appeal a stay pending the

hearing of the appeal.

7 That the defendants’ counterclaim be dismissed with no order for costs.”

From that order the Defendants, William Ewing and Robert Ewing, sought to appeal to the High Court.

The appeal came before Ms Justice Mella Carroll in Galway on the 19th day of November, 1996. Ms Lorna Burke, Solicitor of

Messrs Burke & Co, Solicitors for William Ewing sought an adjournment. The order goes on to recite that there was no

appearance in Court on behalf of Robert Ewing. In those circumstances the learned Judge of the High Court ordered that the

appeal by Robert Ewing, the secondly named Defendant, be struck out and she adjourned the appeal by Mr William Ewing to the

next sitting of the High Court in Galway on terms that the witness expenses incurred for the hearing on the 19th of November,

1996 should be discharged in advance of the next sitting of the High Court in Galway.

The appeal by Mr William Ewing came before Mr Justice Kelly sitting in Galway on the 22nd of July, 1997. As appears from the

recitals to that order the first named Defendant, William Ewing represented himself at the hearing of the appeal.. Again it is

recited in the order - as one might expect - that evidence was heard on behalf of the Plaintiff and of the Defendant and having

done so the Court went on to make a series of orders which included the two orders following:-

“1 That the two sets of proceedings between the parties (bearing record numbers E21/88 and E131/88) be consolidated.

2 That the defendant’s counterclaim in each civil bill be dismissed with no order as to costs.”

In addition the learned High Court Judge upheld the decision of the Circuit Court in relation to the allegations of trespass made

by Mr Kelly against the Ewings and in relation to costs he ordered:-

“That all of the order made in the Circuit Court concerning costs be hereby affirmed and for the plaintiff to be also

entitled to recover the costs of these proceedings in the High Court against the said defendant (William Ewing) and the

court did certify for senior counsel in both the Circuit Court and the High Court.”

As the decision of the High Court on appeal from the Circuit Court is final and unappealable that decision concluded the issue as

between William Ewing and Anthony Kelly and all persons claiming through them in respect of the issue as to whether the sale

and transfer of the lands comprising Folio 1347 of the Register of Freeholders County Galway was valid and binding on the

parties thereto. It is important to stress that the issue was determined once and for all irrespective of the arguments made or

evidence adduced by either party. The circumstances in which a final decision of either the High Court or Supreme Court might

be reopened are exceptional indeed and there is no reported case in which an argument to the effect that a final decision

should be reopened has succeeded.

In those circumstances it was, perhaps, surprising to find that on the 6th day of May, 1999, Robert Ewing instituted the

proceedings which give rise to this appeal. In the plenary summons and in the statement of claim delivered pursuant thereto on

the 24th August, 1999, having identified the interests of the nine named Defendants the Plaintiff went on, in the statement of

claim, to say:-

“11 The plaintiff claims ownership of ALL THAT AND THOSE, the lands comprised in Folio 1347 ( the said lands) by virtue

of his father having passed away on the 20th of January, 1999, and by virtue of the said transfer to him dated the 21st

of May 1986 and his father’s will dated the 3rd day of December 1991, and there having been no natural justice in

relation to the proceedings brought by the first named defendant and the counterclaim entered by the third named

defendant to the effect that the plaintiff’s father is entitled to ownership of the said lands for the reasons set out in the

defence, dated the 13th day of October 1988.

12 On the 6th day of December 1982 the plaintiff’s father, William Ewing, entered into a contract with the first named

defendant as put forward and advised by the second named defendant, which purported the sale of his lands to the first

named defendant for a consideration of the £45,000. The vendor accepted this figure and all subsequent figures as a

result of the undue influence of the first and second named defendants. Both the said figure and the privately agreed

consideration were well below the true valuation of the property as known by all three parties at the time. The said

defendants intended to defraud the Revenue Commissioners since £50,000 was the intended payment (in order to

ameliorate the vendor’s loss of the property).”

In those terms it is clear that Mr Robert Ewing was attempting to reopen the issue raised by his father in the counterclaim in

the Circuit Court proceedings and to combine with it allegations of negligence, and indeed fraud, by the four firms of solicitors

who did at different times act for Mr Ewing Senior, in relation to his dispute with Mr Kelly. Of the first and secondly named

Defendants it was said that they “fraudulently represented that they were the plaintiff’s father’s friends” and further that they

“abused a trust the plaintiff’s father had placed in them and acted together against his interest for mutual gain and out of a

desire to end his father’s connections with the said lands and establish them as Roman Catholic lands”.

In relation to the thirdly named Defendant, CP Crowley & Co, it was said that they “co-operated and assisted” an agent of the

first and secondly named Defendants in having the proceedings continually adjourned. It is not clear from the pleadings what

case is made against the fifthly named Defendants - Egan O’Reilly & Co - save to say that “they undertook the task from them

[the fourthly named Defendants] to bring about a settlement of the dispute”. The case against the sixthly named Defendants -

Burke & Co - is set out in paragraphs 30, 31 and 32 of the statement of claim and involves allegations that that firm of solicitors

sought to prevent the resumption of the hearing of the proceedings which took place in May, 1990, and attempted to force the

Plaintiff’s father into a settlement on the eve of the hearing by representing that his barrister was not available. It is asserted

that the sixthly named Defendant had the Plaintiff’s appeal to the High Court struck out. That contention appears to be at

variance with the facts as they appear from the order of the High Court. The allegation that this firm of solicitors attempted or

succeeded in excluding the Plaintiff from the earlier proceedings “and relied on the Garda Siochana at Lough Rea to keep him

away from the area through intimidation” is not supported by any evidence. The claim against the Law Society of Ireland

appears to be based on the allegation that when Mr William Ewing proposed to institute proceedings for negligence against

solicitors retained by him he sought and obtained from the Law Society the names of three firms of solicitors who might act for

him in that connection and that the persons so nominated were unsuitable or unwilling to undertake that task.

In those circumstances an application was made by the first six named Defendants for an order that the proceedings against

them and each of them be struck out pursuant to the Rules of the Superior Courts or the inherent jurisdiction of the Court on

the grounds that there was no possibility that the Plaintiff could succeed in the action as against them. The matter came

before Mr Justice O’Sullivan in the High Court, who for the reasons set out in the judgment delivered by him on the 16th day of

May, 2000, acceded to the application. It is from that judgment and in the order made pursuant thereto that Robert Ewing

appeals to this Court pursuant to a notice of appeal dated the 11th day of December, 2000.

It is clear beyond debate that Mr Robert Ewing feels intensely the wrongs which he believes were perpetrated against him and

his father and that he has over many years examined and analysed what he believes to be the actions, motivations and

intentions of the Defendants. His understanding of the facts is set out in nine lengthy affidavits sworn by him between the 24th

day of November 1999 and the 27th day of April 2000 and the many exhibits contained therein. In addition Mr Ewing prepared a

written submission for this Court which has been carefully read and reread. The material prepared by Mr Ewing is directed almost

exclusively to his analysis and interpretation of the motivation of the parties with whom his father had dealings in relation to the

sale of the lands of Abbeyville. He believes that the conduct of the Defendants or, at least some of them, was to say the least,

suspect and it is his belief and understanding that there is a constitutional obligation on this Court and that there was a

constitutional obligation on the Circuit Court (and the High Court on appeal from it) to investigate those suspicions. That is an

argument which was firmly but delicately rejected by the learned High Court Judge, Mr Justice O’Sullivan. The learned Judge

explained at page two of the transcript of his judgment that:-

“I would also say at the outset that an application such as the present one is dealt with at a technical level; that is by

reference to established principles of pleading and by reference to concepts of legal causation and recoverable loss,

rather than on the merits of any matters in contention which may be raised or alluded to in the application or in the

papers. Thus, for example, in considering these motions I am not concerned with deciding and do not determine the

suggestion for example, that the plaintiff is irrational, violent, obsessional or unintelligent or the suggestion from the

other side alleging institutionalised racism or the more serious allegation linking the activities of some of the defendants

with the unfortunate death of the plaintiff’s father. My only concern is, rather, to reach conclusions on the relatively

technical questions of pleadings and the processing of the claim as indicated above.”

In my view the learned Judge was entirely correct as a matter of law and commendably sensitive in explaining his functions in

that way. Mr Robert Ewing may be mistaken as to the manner in which courts of law seek to attain justice. In Ireland the

Judicial system is adversarial. Each party asserts the legal rights claimed by him and puts forward the evidence available to him

in support of those allegations. The other party has the right to cross-examine the witnesses called on behalf of his opponent.

With the solitary exception of the application for an order of habeas corpus, the Courts do not, in this jurisdiction, themselves

carry out investigations or inquiries; it is left to the parties themselves to make their case on both fact and law and for the

Judges to adjudicate upon the evidence and argument placed before them. The reference by Mr Robert Ewing to the decision of

this Court in In Re Haughey [1971] IR 217 shows how misunderstandings may arise in relation to our judicial system. In that

case Mr Padraic Haughey appeared as a witness before a committee of Dáil Éireann. The argument made on his behalf was that

the questions put to him and the evidence adduced in relation to his alleged activities constituted a case against him and that,

accordingly, he was entitled to be represented by lawyers and have the evidence against him tested on cross-examination.

That contention was, as Mr Ewing points out, upheld. Effectively what Mr Haughey sought were the rights enjoyed by a

defendant in legal proceedings. These were, however, the rights which have already been accorded to Mr Robert Ewing and his

late father in relation to the matters of legal controversy in which they were engaged. The Judge of the Circuit Court - Judge

Harvey Kenny - heard the argument and evidence advanced in relation to the claim by Mr William Ewing as to the invalidity of

the contract for sale of the Abbeyville lands. He rejected that claim. The matter was reheard by Mr Justice Kelly in the High

Court. He too heard evidence and argument and rejected the claim that the agreement for sale was invalid. That, as I have

already said, concluded the matter and any further claim in any proceedings in this jurisdiction seeking to reopen this issue

would be undoubtedly an abuse of the process of the Court. On that basis it is clear that the claim against Mr Kelly in the

existing proceedings was rightly dismissed.

Apparently Mr Robert Ewing believes that the other Defendants formed some part of a conspiracy against him. In his written

submission to the Court he put it this way:-

“The only explanation for the attitude of so many in this case, when mere criminality does not adequately explain the

victimisation, is that the plaintiff’s father’s family are Ireland’s natural royal family, and their characteristics could not

fail in a state such as this to encourage that very attitude of mind which the Constitution of Eire might be said to have

been designed to extinguish. The plaintiff has therefore asked for a clarification of the meaning of the Constitution in this

case, and feels duty bound, indeed, to make it as clear as he can to the court that the consequences of a judgment in

the first defendant’s favour, accepting his claim that the issues raised in these proceedings were dealt with and that his

proceedings might justifiably be described as “a nuisance action”, may be fatal to the peace process on this Island and

defeats the cause of national unification as expounded by the Constitution itself. The date of the contract being an

anniversary of Irish National Freedom, and of the issue of the bill of costs being St Andrew’s Day, may be deemed to be

coincidental, but it can never be deemed coincidental that the first defendant and many of the defendants involved have

spoken of the plaintiff in extremely onerous terms as an Orange element in Irish national life, and yet the plaintiff is an

Irish bowls champion and his English references described him as “a very nice boy” who was “a credit to” his school “in

every way”.”

Later in his submissions Mr Ewing claimed to identify the issue in this matter in the following terms:-

“The issue would then appear to be an issue of “the type of person Robert” is (using the first defendant’s own words as

stated at page 90 of the case exhibits) and thus it has been the concern of the plaintiff in this submission to highlight

aspects of the case that were presented at the High Court hearing in respect of the plaintiff being the natural king of

Ireland by the grace of our Lord Jesus Christ because if it one day becomes obvious to people that the plaintiff was

never involved or interested in a religious sect, and that the happy existence of the plaintiff on Irish soil might one day

mean a united Ireland, then the conduct of the Gardaí and the legal profession .......may suggest a determination on the

part of Irish people themselves to acquire what they desire on this island short of a respect for the human rights of

those concerned, and without adherence to any declaration of a bill of rights or to any doctrine of Christian prudence,

justice or charity.”

The case against the four solicitors is nowhere clearly stated. It might be expected that a case in negligence or breach of

contract would be pleaded against the solicitors for the plaintiff or his late father. In fact, no claim for damages under either

such heading is made in the reliefs sought, which are almost exclusively concerned with the issue of land ownership. More

importantly, the statement of claim does not contain any coherent or identifiable allegation of any act or default against any of

these defendants which could sustain such a claim. As against both the third and fifth named defendants, it is pleaded that

they were “withdrawn” ie, dismissed by the late William Ewing. In the former case, this is alleged to be because of “an attempt

to set up the plaintiff and his father”; in the latter case it is alleged to be because of undertaking the task allegedly assigned to

them by the fourth defendant, The Law Society, “to bring about a settlement of the dispute and end the danger of legal action

being taken against the second named defendant”. In each case, it is clear that the supposed intentions of these defendants

are claimed to have been frustrated by the action of their dismissal. As against the sixth defendant, an identical allegation is

made together with a number of unconnected allegations said to form part of a “saga of misconduct and racial discrimination”.

What is absolutely clear about any of these allegations is that they relate to the conduct one way or another of the

proceedings concerning the land. Yet, the plaintiff has failed to point to even one plea of an act of negligence or breach of

contract against any of these firms of solicitors - or by extension the fourth named defendant - which he claims to have

contributed to the unfavourable result, from the plaintiff's point of view of those proceedings.

The principal concern, therefore, of the plaintiff, to which all of the allegations against the other defendants appear to be

secondary, is to reopen the land dispute. This, as already stated, has been conclusively determined against the plaintiff's

father. The plaintiff is bound by that decision.

The learned trial Judge rightly and necessarily rejected the contention that the action of the Law Society in providing names of

solicitors who would be prepared to act for the Plaintiff in proceedings instituted by him against solicitors was or could have

amounted to negligence.

The learned High Court Judge concluded his judgment, as he had started it, by reiterating that his judgment was confined to a

consideration of technical issues concerned “with pleadings, the legal concept of a cause of action, legal causation and

recoverable loss rather than any evaluation of the matters which are clearly of concern to the plaintiff and are the subject of

his complaint, but which are, in my opinion incapable of being made the subject of justiciable controversy in legal proceedings

in these Courts”.

Again I am in complete agreement with the sentiments expressed by the learned High Court Judge and the understanding

manner in which he expressed them.

Whilst one will always be sympathetic to any litigant who feels intensely about wrongs which he believes he endured, some

sympathy must be reserved for the other parties to protracted and costly litigation. At the end of the day the matter cannot be

determined on the basis of sympathy but on those legal principles which were analysed and applied by Mr Justice O’Sullivan. In

my view he correctly and necessarily dismissed the proceedings against each of the first six named Defendants. Accordingly I

would dismiss the appeal and affirm the order of the learned High Court Judge.