Supreme Court dismisses appeals for abuse of process due to unreasonable delay and inconsistent litigation conduct by the appellant.

[2003] IESC 1

THE SUPREME COURT

166/01

McGuinness J

Hardiman J.

McCracken J.

Between:

EAMON CARROLL and MARY CARROLL

Appellants

and

CHRIS RYAN, JOHN ROGERS and THE LAW SOCIETY OF IRELAND

Respondents

128/02

IN THE MATTER OF THE SOLICITORS’ ACTS AND THE APPRENTICES REGULATIONS

Between:

EAMON CARROLL

Applicant

and

THE LAW SOCIETY OF IRELAND

Respondents

JUDGMENT of Hardiman J. delivered the 21st day of January, 2003.

1. These are two appeals by Eamon Carroll against orders made in the above entitled respective proceedings. Since each set of

proceedings is closely related to the other in certain essential aspects, and since the history of one is incomprehensible without the

history of the other, I propose to resolve both appeals in a single judgment.

2. Mr. Carroll’s first appeal is against the order of the High Court (Mr. Justice Kelly) made on the 2nd May, 2001 whereby the learned

trial judge struck out proceedings against the Law Society on the basis that they were an abuse of the Courts process. He awarded

the costs to the Society. The second appeal is against the decision of the High Court (Morris P.) made the 13th June, 2001. On that

day the learned President ordered that ground three of Mr. Carroll’s Notice of Application to review the decision of a committee of the

Law Society be struck out as an abuse of process.

3. In giving the judgment leading to the first of the orders appealed against, Kelly J. observed “This is a further chapter of a saga that

has gone on for some time”. That is a restrained statement of the complexity and duration of the disputes between Mr. Carroll and

the Law Society. Some summary of these disputes must be offered if this judgment is to be comprehensible.

4. On the 7th January, 1991 Mr. Carroll was apprenticed to Chris Ryan Solicitor of 18 North King Street, Dublin. On the 16th February,

1993 an accountant was appointed by the Law Society to conduct an inspection of Mr. Ryan’s practice. It transpired that Mr. Ryan

had a branch office in Rialto said to be run by the appellant, his apprentice. It was also said that the appellant did the books of the

practice conducted in that office. These books had significant inaccuracies.

5. Mr. Carroll (hereafter “the appellant”) had previously been apprenticed to a brother of his, Mr. Donal Carroll. The latter was struck

off the role of solicitors by the High Court in 1983, with the appellant’s apprenticeship uncompleted. During the intervening years the

appellant worked with his brothers in a business called Accident Claims Services which operated in Dorset Street. When the services

of a solicitor were required in connection with the business of accident claims service, that entity instructed Mr. Christopher Ryan to

issue proceedings. For a fuller account of this aspect of the background to the present appeals see the judgment of the High Court

(McGuinness J.) in Eamon Carroll v. Law Society of Ireland and the Attorney General [2000] 1 ILRM 161.

6. Arising out of the investigating accountant’s report both the appellant and Mr. Chris Ryan were questioned by the Compensation

Fund Committee of the Law Society. Mr. Ryan advised the Committee that he did all the legal work for Accident Claim Service and

that he only got this work because the appellant was his apprentice.

7. Subsequently, in the summer of 1993 Mr. Ryan made further serious and specific allegations against the appellant.

8. Despite this history, on the 2nd September, 1993 Mr. Ryan furnished to the Law Society a document known as “Declaration of

Master”. The effect of this was that he (Mr. Ryan) knew nothing which suggests that the appellant was not a fit and proper person

to be admitted to the role of solicitors.

9. On the 3rd December, 1993 the Society issued a plenary summons against the appellant claiming that he was unlawfully holding

himself out to be a solicitor. These proceedings were subsequently dismissed on the basis that the relief related to breaches of the

criminal law alleged against the applicant and should be resolved in criminal rather than in civil proceedings. See the report of this

case at [1996] 2 ILRM 95.

10. On the 13th December the Director of Education of the Law Society signed a notice of complaint of misconduct against the

appellant. On the 21st December, 1995 the appellant applied to the Society to forward his name to the President of the High Court

with a view to his been admitted as a solicitor. The Society did not take this step since the Education Committee was not satisfied

that he was a fit and proper person to be a solicitor. On the 14th May, 1996 there was a hearing before the Education Committee of

the Law Society at which the appellant was represented by solicitor and counsel. Arising from this, judicial review proceedings were

commenced by the appellant against the Society, pursuant to the order of Kelly J. granting leave made the 22nd July, 1996. These

proceedings were decided by a further judgment of the High Court (McGuinness J.) on the 19th January, 1999: the reference to this

in the Law Reports is given above. In the course of this judgment most of the appellant’s claims were dismissed but it was held that

the Education Committee designated to hold an inquiry into the appellant’s fitness to be a solicitor could not proceed without an

element of lay participation.

11. Following this judgment the Law Society appointed the former Chief Justice, Mr. Justice Finlay to sit together with Ms. Ann Colley

and Mr. Simon Murphy, solicitors, as the Education Committee of the Society. This Committee held the hearing over seven days

between the 30th November, 1999 and the 13th January, 2000. The appellant was represented by solicitor and counsel. The

Committee issued its report on the 13th March, 2000 to the President of the High Court, finding that the appellant was not, in the

opinion of the Committee, a fit and proper person to be admitted as a solicitor. The Committee made certain express findings and in

particular dismissed each of the following submissions which the appellant had made:-

(i) That the Society was estopped from the finding of misconduct against him because of its failure to institute

disciplinary proceedings against Mr. Ryan, or to call this gentleman as a witness.

(ii) That the Society was estopped from obtaining any finding of misconduct against Mr. Carroll because of its failure to

call a witness from the Society to answer a charge made by Mr. Carroll that the proceedings against him were maliciously

instituted.

(iii) That the proceedings against Mr. Carroll were a breach of his right to equal treatment in the absence of a

simultaneous or prior proceeding against Mr. Ryan.

(iv) That the proceedings against Mr. Carroll were an abuse of dominant position contrary to Section 5 of the Competition

Act, 1991.

12. It should in fairness be recorded that many of the specific allegations against the Appellant were dismissed.

13. This decision of the Education Committee led to the institution of the first (though not first in time) set of proceedings with which

the Court is now concerned. On the 18th April, 2000 the appellant issued a notice of application to review the decision of the

Education Committee pursuant to Regulation 25(d) of the Solicitors’ Acts, 1954 – 1994 (Apprenticeship and Education) Regulations,

1997 (Statutory Instrument No. 287 of 1997). Ground 3 of this notice was in the following terms:-

“In so far as an adverse conclusion was reached in connection with the applicant’s activities while he was apprenticed to

Christopher Ryan, in view of Mr. Ryan’s knowledge of and authorising/condoning these activities and of the respondent or

its disciplinary committee never taking steps to discipline Mr. Ryan in respect of those events and activities, even after

the Supreme Court had in effect directed the respondent to do so, or seeking to have him give evidence at the tribunal

notwithstanding their power to discipline him if he declined:-

(i) The respondent is estopped from contending that those events and activities render the applicant an unfit and

improper person.

(ii) To so contend or hold denies the applicant his constitutional right of equality before the law and his European

Convention Right of Equality (Article 14).

(iii) To so contend or hold in the circumstances is an abuse by the respondent of its dominant/monopoly position

contrary to Article 86 of the EEC Treaty and Section 5 of the Competition Act, 1991, being designed to or having

the effect of inhibiting competition in the legal services market”.

14. By order of the 13th June, 2001 the learned President ordered that ground (iii) of this notice be struck out as an abuse of process

and adjourned the balance of the application generally. However, on the 26th June, 2001 a date for a full hearing of the remainder of

the application on the 31st October, 2000 was fixed. This matter has been adjourned from time to time since then.

New judicial review proceedings.

15. Matters now proceeded at a more rapid and somewhat bewildering pace. On or shortly before the 26th June, 2000 the appellant

made an ex parte application for leave to seek judicial review in relation to the report of the Education Committee. He wished to

quash those sections of it which were unfavourable to him, and to seek certain further reliefs. The High Court (Ó Caoimh J.) adjourned

the application until the 28th June so that the Society could be heard on the matter. But on the 29th June, 2000, the appellant,

through his counsel, indicated that he was not proceeding with the application for leave. The explanation given for this in the

affidavits opened to us was that “on reflection Mr. Carroll’s counsel concluded that since there is a full right of de novo appeal from

the Committee’s decision, a judicial review was entirely unnecessary”.

16. The appellant’s next move was to revive earlier proceedings which had been issued in October 1996. The detail of these

proceedings is of some importance.

17. It appears that on the 3rd October, 1996 the Appellant had issued two sets of proceedings. One (8613P/1996) was entitled

“Eamon Carroll and Mary Carroll v. Chris Ryan and John Rogers and the Law Society of Ireland”. According to the endorsement on the

plenary summons his claim in these proceedings was for “damages for personal injuries, nervous shock, loss, damage and expense

caused or occasioned to the plaintiffs and each of them by reason of the negligence, nuisance, malice, misrepresentation, conspiracy,

breach of contract and breach of duty (including statutory duty) of the defendants and each of them their servants or agents”.

18. On the same day the appellant had issued another summons (8610P/1996). This was entitled “Eamon Carroll v. The Law Society

of Ireland”. The endorsement of the summons stated “The plaintiff’s claim herein is for damages for libel and/or slander and/or

malicious falsehood”.

19. Almost four years after the issue of these proceedings, on the 3rd July, 2000, Mr. Carroll delivered a statement of claim in the first

mentioned of these plenary proceedings. At paragraph 8 of this document he claimed that the actions of the Law Society

constituted:-

“(i) An unreasonable restraint of trade at common law, ultra vires the Society’s charter and places that charter in

jeopardy of being forfeited through proceedings for the writ of scire facias;

(ii) A contravention of old Articles 85 and 86 of the EEC Treaty;

(iii) Since the 22nd July, 1991, unlawful anticompetitive arrangements and an abuse of a dominant position contrary to

Sections 4 and 5 of the Competition Act, 1991”.

20. It will be seen that none of these causes of action were included on the plenary summons.

21. The Law Society then brought the application which was eventually heard by Kelly J., against whose decision the first of these

appeals is taken. Judgment was delivered on the 2nd May, 2001, striking out the proceedings as an abuse of process.

22. In the following month, on the 13th June, 2001 the appellants’ application to review the decision of the Education Committee was

listed. What happened on this occasion appears from the transcript. Dr. Forde, on behalf of the appellant, indicated to the learned

President that he wished, as an alternative to other ways of expressing or advancing his case, to argue that the Law Society had

engaged in a form of discrimination against the appellant which was contrary to the Competition Act. This, he said, was based on the

proposition that if Mr. Carroll became a solicitor he might then be in a position to co-operate with “non solicitors’ accidents claims

businesses in a lawful manner”. (See transcript pp11-27) Counsel for the Law Society protested at this and there followed, at pages

35 and 36 a summary by the learned President of what had occurred when the judicial review proceedings had been before him the

previous year. He said:-

“The point was made that the matters contained at paragraph 3 were not part of a review of any proceedings that were

taken by the Law Society Committee or sub-Committee but were correctly the subject matter of judicial review. My

recollection is and I have no doubt about this though the point was made by Mr. Feeney, that I expressed support for

that view and that you accepted it also and you left here with the intention of bringing judicial review proceedings”.

23. Counsel for the appellant accepted that this was an accurate summary but suggested that no order had been made to that

effect: the judge had merely indicated a view. The President said:-

“Yes, but the point is that counsel for the applicant accepted it. Surely that must be the end of that. What were we

doing here if an application is made to me and you accept that and it is maybe not the subject matter of a concise order

but it is accepted by senior counsel for the applicant that that is the correct method of resolving the issue. Surely you

are not saying you can come back now and unravel that”.

24. Counsel for the Law Society then pointed out that the appellant’s other attempt to agitate the Competition Act point, in the

statement of claim delivered on foot of the 1996 plenary summons, had the previous month been struck out as an abuse of process

by Kelly J., and that it was the intention of the appellant to appeal that decision. If this was so, the Society said, it was a waste of

time to proceed with the review. The learned trial judge indicated that “So long as the issues contained in paragraph 3 of your notice

of application remain outstanding before the Supreme Court, I will not proceed with this review because I believe it would be wasting

four or five days of the Court’s time”. The applicant then requested a short adjournment after which his counsel said that his

instructions were to withdraw the appeal to this Court against the order of Kelly J. The review application then started but within

minutes it had become clear that the appellant intended to urge the grounds set out in paragraph 3. The learned trial judge reiterated

what he had said when the matter was first before him the previous year, that the matters contained in paragraph 3 were not

appropriate to be dealt with in a review. The learned President then made the order appealed against.

The issue.

25. From the foregoing it will be clear that the Equality - Competition Act – EEC Treaty point (hereinafter referred to as the paragraph

3 point), was sought to be raised by Dr. Forde on behalf of the appellant in three sets of proceedings before the Court. It was raised

in the application for review, dated the 18th April, 2000; this was not proceeded with when, the 29th May, 2000 the learned

President indicated that he considered it and two other points (not now in issue) to be suitable for judicial review, and the appellant

agreed. It was then raised on or about the 26th June, 2000 in the appellant’s abortive judicial review proceedings (abortive because

withdrawn by the appellant). It was next raised when, on the 3rd July, 2000 the appellant delivered a statement of claim in the first

of his two plenary proceedings issued in 1996. This action was struck out as an abuse of the process of the Court on the 2nd May,

2001. On the 13th June, 2001 there occurred the confusing events summarised above, leading to paragraph 3 of the application for

review being struck out as an abuse, because it raised the same points again.

26. On the other hand, the paragraph 3 claim was not raised in any form in either of the sets of proceedings issued in October, 1996.

Nor had it been agitated in the judicial review proceedings, eventually heard before McGuinness J. in 1999, which were instituted on

the 22nd July, 1996. Nor, subsequently, in those instituted in June 2000, because they were abandoned.

27. Kelly J. held, on the basis of a concession by counsel for the appellant, that the latter knew about a claim of the sort expressed

in paragraph 3 of the notice of application at least by 1996. No appeal has been taken against this finding. He equally held that the

decision not to agitate it in the 1996 judicial review proceedings was a deliberate one. This finding, equally, is unappealed.

The law.

28. There is a well established rule of law whereby a litigant may not make the same contention, in legal proceedings, which might

have been but was not brought forward in previous litigation. This rule is often traced to the judgment of Wigram V.C. in Henderson

and Henderson [1843] 3 HARE 100. The learned Vice-Chancellor spoke as follows:-

“I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation

in, and adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward

their whole case and will not (except under special circumstances) permit the same parties to open the same subject of

litigation in respect of matter which might have been brought forward, only as part of the subject in contest, but which

was not brought forward, only because they have from negligence, inadvertence, or even accident, omitted part of their

case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually

required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the

subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time”.

29. A number of decisions affirming this approach were opened to us. Two of these were Irish cases. In Russell v. Waterford and

Limerick Railway Company [1885] 16 LR IR 314, Dowse B. said that:-

“Where the cause of action is the same and the plaintiff had an opportunity in the former suit of recovering that which he

seeks to recover in the second, the former recovery is a bar to the latter action”.

30. Similarly in Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345, Palles C.B. held that a party to a previous litigation was bound

“not only (by) any defences which they did raise in that suit, but also any defence which they might have raised but did not raise

therein”. In the judgment of Kelly J. in this case he also referred to Barrow v. Bankside [1996] 1 Lloyds Law Reports 278 and to

Johnson v. Gore Wood [2002] WLR 72. The first of these cases speaks in terms of issues that might “sensibly” have been brought

forward in previous litigation and also suggests that the rule of what is sometimes referred to as “estoppel by omission” is not in fact

based on res judicata in the strict sense but it is an independent rule of public policy. Lord Bingham MR held that the Court must take

the need for efficiency in the conduct of litigation into account.

31. In Woodhouse v. Consigna [2002] 2 AER 737, Brooke L.J. referred to this public interest and continued:-

“But at least as important is the general need, in the interests of justice, to protect the respondents to successive

applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson that, in the

absence of special circumstances, parties should bring their whole case before the Court so that all aspects of it may be

decided (subject to appeal) once and for all is a rule of public policy based on the desirability, in the general interest as

well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be

oppressed by successive suits where one would do.”

32. This seems quite consistent with what Lord Bingham said in Johnson v. Gore Wood, at page 90 when he urged that the Court

should arrive at:-

“A broad, merits based judgment which takes account of the public and private interests involved and also takes account

of all of the facts of the case, focussing on the crucial question whether, in all the circumstances, a party is misusing or

abusing the process of the Court by seeking to raise before it issues that could have been raised before”.

Contentions on this issue.

33. The defendant’s contention can be summarised as saying that the appellant’s two relevant attempts to raise the paragraph 3

issues obviously fell foul of Henderson v. Henderson. The appellant denied this on a number of grounds. He said that the claim on this

ground comprised in the 1996 plenary proceedings was a claim for damages and could be distinguished from attempts to raise the

same point in the review proceedings, where the object of raising it was to displace the Education Committee’s findings. He said there

was no evidence of any unfairness or injustice to the Law Society in permitting the same claim to continue in both sets of

proceedings the subject of the appeals. He says that the height of the defendant’s case is that the paragraph 3 issues could be

raised in “the judicial review”. He says, however, that judicial review was heard at a separate list from a damages action and that an

application to have judicial review proceedings heard together with the damages action would most likely not have been acceded to.

He relied heavily on Johnson v. Gore Wood and said, on that basis, that he was presumptively entitled to maintain both claims.

Decision.

34. I agree with what is said by Lord Bingham MR in Johnson v. Gore Wood at page 33 when, speaking of the rule in Henderson and

Henderson he said “An important purpose of the rule is to protect a defendant against the harassment necessarily involved in

repeated actions concerning the same subject matter”. This harassment, in my view, may arise whether or not a set of proceedings is

pursued to judgment or settlement. None of the appellant’s proceedings have reached this state but that does not prevent the

defendant from having to deal with them. Indeed in June 2001 the Defendant attended with its witnesses ready to deal with the

review proceedings. These proceedings were in the end adjourned in circumstances showing remarkably indecisiveness, to put it at its

mildest, the part of the appellant as to whether, and in which forum, he desired to pursue his paragraph 3 grounds.

35. The appellant has commenced or defended six sets of proceedings in the High Court which involved the Society: the two plenary

proceedings, the application to review the Education Committee, the judicial review heard by McGuinness J. and the judicial review

abandoned before Ó Caoimh J. were initiated by him. It seems to me that the critical reason why none of these proceedings have led

to finality on the paragraph (iii) issues relates to the applicants conduct immediately after he had agreed, in May 2000 before the

President that these matters were properly the subject of the judicial review proceeding, rather than the application for review. In

the following months he first sought, and then abandoned, leave to apply for judicial review. The explanation given on affidavit, that

the abandonment took place because of a view that “since there is a full right of de novo appeal from the Committee’s decision a

judicial review was entirely unnecessary” is quite unsatisfactory. At the time of the abandonment it was less than a month since, in

the words of the learned President in June 2001 the appellant had “left here with the intention of bringing judicial review proceedings”.

The appellant has simply sought to resile from that decision in two separate ways: by including the relevant contention in a

statement of claim delivered subsequent to a plenary summons served three years and nine months earlier, and by seeking to

reagitate the same contention in the application for a review. In my opinion, to permit him to do so would be oppressive of the

defendant and would interfere gravely with both the private and the public interest in the efficient conduct of litigation. The

appellant’s mode of conducting his proceedings is such as almost to suggest that he is keen to raise the paragraph (iii) issues but

most reluctant to have them adjudicated upon. On the basis of the unappealed finding that his alleged rights in this regard were

present to his mind in 1996, more six years has gone by without any effective effort to bring them before the Court. That interval of

time, with all the expense that the intermittent skirmishes have occasioned, is simply too much. I would affirm both orders: that of

Kelly J. for the reasons which he gave and that of Morris P. because it is the logical corollary of the indication which, for excellent

reasons, he gave in May 2000 and the appellant assented to. The appellant’s attempts to suggest that he can avoid the

consequences of this because no formal order was drawn up at that time excluding the ground (iii) material from the application for

review is wholly unacceptable. No order was drawn up because Morris P. believed, on counsel’s statement, that the appellant

accepted his view that the ground (iii) material would have to be agitated by judicial review. He expected that the appellant would

act in accordance with this: unfortunately he expected too much. More than a year later he was confronted with the same point

raised before him in the same proceedings without apparent embarrassment or (until objection was taken) any explanation. In my

view, this is an unacceptable way to conduct litigation.