Supreme Court dismisses appeal against Dublin Metropolitan District Court but allows it against Courts Service on procedural grounds.

THE SUPREME COURT

[Appeal No. 2009/29]

O’Donnell J.

MacMenamin J.

Finlay Geoghegan J.

BETWEEN:

KEVIN TRACEY

PLAINTIFF/APPELLANT

V. MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND THE ATTORNEY GENERAL, COMMISSIONER OF AN GARDA

SIOCHANA, DIRECTOR OF PUBLIC PROSECUTIONS, THE DUBLIN METROPOLITAN DISTRICT COURT, THE COURTS SERVICE, AND

DAVID REYNOLDS

DEFENDANTS

Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2018

1. On the 26th January 2009, the High Court, (Hedigan J.), relying on Order 19, Rule 28, RSC, 1986, struck out the plaintiff’s claim

against the sixth and seventh named defendants in these proceedings. The High Court held that the pleadings did not disclose any

cause of action against the two defendants, who were, respectively, identified in the plenary summons and statement of claim as the

“Dublin Metropolitan District Court”, and the “Courts Service”. For the purposes of this judgment, both will be referred to as “the

defendants”, save where the context indicates otherwise. In all, a total of eight defendants were sued. For ease of reference, Mr.

Kevin Tracey, a litigant in person, who was the respondent in the High Court motion to strike out, and who now appeals the order,

will, for clarity, also be referred to as “the plaintiff”.

Background

2. The plenary summons in these proceedings was issued on the 15th November, 2007. There, and in the subsequent statement of

claim, the plaintiff made a number of allegations of wrongdoing against all eight defendants. These claims took the form of alleged

misfeasance in public office, breach of constitutional and human rights, malicious prosecution, abuse of legal process, and perversion

of the course of justice. Mr. Tracey claimed damages for these alleged wrongs, and for loss, inconvenience and expense caused by

alleged breach of contract, negligence, and breach of duty.

3. The solicitor for the two defendants, who were applicants in the High Court, entered an appearance on the 7th December, 2007. A

statement of claim, delivered on the 22nd December, 2007, identified the sixth named defendant as “The Dublin Metropolitan District

Court”, having an address at Richmond District Court, Brunswick Street, Dublin 7, which was sued in its “representative capacity”.

The Courts Service, created by statute in the year 1998, was also said to be sued in its representative capacity. The identity of the

other six defendants is self-explanatory, with the exception of the eighth named defendant, David Reynolds, who is a member of An

Garda Siochana, who brought a District Court prosecution in question against the plaintiff, which gives rise to the claim.

General Observations

4. To provide a framework for what follows, it may be helpful to make some general remarks on pleadings, and particularly a statement

of claim. It is by now well established that the purpose of a statement of claim is to state succinctly the facts upon which a plaintiff

relies, and the reliefs which are claimed. As a matter of basic fairness, if a plaintiff makes claims against a number of different

defendants, each defendant is entitled to know precisely the case which is made against it. (See, in this connection, Order 20, Rules

3 and 8, RSC 1986). A pleading must be so clear and precise as to leave no reasonable doubt as to the matter which the court must

determine, and for each party to know the case which must be met. A claim of a tort, or breach of right, other than particularisation

of one already pleaded, will require an amendment to the statement of claim itself. In a reply to particulars, a plaintiff may identify

with greater precision the factual basis of the claim already made against each defendant. In a case of complexity, the duty of

precision, and particularisation, is much the greater in order that a court will be aware of what matters truly form the basis of the

claim. If the pleading in the statement of claim is unclear in that it does not precisely set out the case which is to be made, a

defendant may be entitled to bring an application to strike out under Order 19, Rule 28, on the basis that the claim is, as the Rules of

the Supreme Courts describe it, “frivolous and vexatious”. When so found, these terms mean that the claim does not disclose a cause

of action against the relevant defendant, and that, as a result, it would be unfair to compel such party to incur costs in continuing to

defend the case. As is made clear in the judgment of this Court in Aer Rianta c.p.t. v. Ryanair Limited [2004] 1 I.R. 506, a court,

hearing an application under Order 19, Rule 28, is entitled to have regard to matters of law in determining whether a claim is fairly

made out.

Legal Principles

5. The legal principles upon which a court will proceed in dealing with an application under Order 19, Rule 28, are well established. The

terms “frivolous and vexatious” are to be understood as meaning that the claim is unsustainable in law, has no chance of success,

such that its continuation would be an unfair imposition on a defendant.

6. In considering an application to strike-out proceedings under Order 19, Rule 28, it is necessary for the courts to balance the

constitutional right of a plaintiff’s access to the courts against rights and interests of defendants who should not be exposed to

defending proceedings which are bound to fail. As the authorities make clear, the courts are “slow”, “careful” and “sparing” in

exercising this function. In Aer Rianta, cited earlier, this Court, (Denham, Hardiman, McCracken JJ.), emphasised that an application of

this type relates only to the textual content of the statement of claim. Denham J., in Aer Rianta, explained that an affidavit filed for

the motion in that case purely described the factual situation as to the pleadings, but did not seek to advance any matter outside

them.

7. In McElhinney v. Williams [1995] 3 I.R. 382, the High Court, Costello J., in considering an application to set aside proceedings under

this Rule, explained that, in such an application, the court was not called upon to decide controversial questions of fact, but rather to

consider the claim made on the pleadings. The judgment of this Court in the subsequent appeal in McElhinney does not criticise this

observation, and giving judgment this Court confined itself to a consideration of the pleadings and matters of law in that case. The

correctness of this approach is confirmed by that adopted by this Court in Aer Rianta, cited above.

8. An application to strike out is to be decided on the assumption that the statements in the statement of claim are true, and will be

proved at trial. If good cause of action can be discerned, then an application under Order 19 Rule 28 cannot succeed, regardless of

the parties’ prospects of establishing that cause of action at the trial. An application will not succeed, either, if a deficiency in

pleading can be rectified by an amendment in the pleading. (c.f. Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425; Lawlor v. Ross,

Supreme Court, 22nd November, 2001). In Aer Rianta, Denham J. explained that the Rule relates to the full Statement of Claim, and

not any part thereof. (See para. 19 to 24 of Denham J.’s judgment). But, if a court is convinced that a claim will fail, the pleading will

be struck out.

9. To these principles I would add that, in determining such an issue, a judge should indicate clearly whether he or she is exercising

the jurisdiction pursuant to Order 19, Rule 28, or whether, alternatively or additionally, the court is proceeding under its inherent

jurisdiction to strike-out proceedings, where the considerations differ and are set out in numerous decisions of the courts. The three

issues in this appeal now fall to be considered.

The Claim

10. The statement of claim in this case broadly follows, and expands upon, the wrongs alleged in the plenary summons. It is

necessary to emphasise that, as matters stand, what is referred to in this judgment are merely allegations, and that their proof or

disproof remain matters to be determined at trial.

11. The plaintiff was prosecuted in the District Court for alleged dangerous driving in a cul-de-sac near his home. He was

subsequently acquitted of this charge in the District Court by District Judge Dympna Cusack. He claims that the bringing of the

prosecution was actuated or motivated by malice, and without foundation in law. The plaintiff says that the three main witnesses in

the prosecution were children. He alleges that the decision to bring a charge of dangerous driving in breach of s.53 of the Road

Traffic Act as amended, against him, was not, in fact, made by the eighth defendant, Garda Reynolds, as prosecuting garda, nor by

the Director of Public Prosecutions, but rather by the mother of those children. However, no claim is made against the children’s

mother in these proceedings. It is further alleged that Garda Reynolds wrongly amended witness statements in the prosecution, with

the intent of “framing” Mr. Tracey. The plaintiff makes allegations of what he conceives to be a number of procedural irregularities in

the manner in which the prosecution was brought on for trial before the District Court which, ultimately, was heard and concluded in

his favour in that court. He complains that, at one preliminary hearing, a District judge, other than Judge Cusack, acted unlawfully by

depriving him of the services of a McKenzie friend. Amongst the other allegations is one to the effect that a District Court judge

signed an order recording an order which was actually made by another judge. Mr. Tracey alleges that this order was a “forgery”, or

procured irregularly. Whether these claims of forgery have any legal foundation is immaterial to this appeal. The issue is addressed

below. Counsel for the defendants makes reference in this connection to Order 35, Rules of the District Court, 1997, and District

Court (Forms) Rules, 2009 (S.I. No. No. 92), which he submits, permit one judge to sign an order made by another judge as a matter

of administrative convenience. It is unnecessary to make any further comment on this point.

Issues for Determination

12. The following issues fall to be determined in this appeal. First, whether Mr. Tracey was wrongly denied a right to cross-examine a

deponent, Margaret O’Neill, who swore a grounding affidavit in the High Court on behalf of the Courts Service, and next, whether any

claim is sustainable in law against the sixth named defendant, the “Dublin Metropolitan District Court”. Counsel for the defendants

submits the words merely describe a District Court venue, defined by legislation, and not a legal entity or personage capable of being

sued. Finally, the question arises as to whether the statement of claim makes out a cause of action against the Courts Service, the

seventh named defendant. The judgment concludes with some more general observations. It is now necessary to trace the course of

the procedure adopted in the High Court.

Further Procedural Steps

13. Arising from the statement of claim, the two defendants’ solicitors served a notice for particulars, requiring details of the

allegations against each defendant. The plaintiff brought a motion for judgment in default of defence before the High Court

(McKechnie J.), who directed the plaintiff to reply to the notice for particulars, allowing time after the reply thereto for the

defendants to file their defence. Mr. Tracey duly furnished a reply to the notice for particulars on the 26th April, 2008.

14. He set out further allegations made against the two defendants. These included an allegation against the Courts Service to the

effect that a District Court clerk had, allegedly, acted “irregularly” in witnessing or certifying the allegedly irregular signing of the

District Court order by another judge; and claiming that there had been a failure to inform Mr. Tracey of a listing of the case in the

District Court on the 17th February 2006, at which point an order was made adjourning the prosecution to a future date.

15. A defence was filed on behalf of the two defendants on the 16th June, 2008. This contained the plea that the sixth named

defendant was not a legal person and could not be sued, either in a representative capacity, or otherwise. It also contained a plea

that the seventh defendant, the Courts Service, was confined to acting within its statutory remit as set out in the Courts Service

Act, 1998, and that no wrongs were alleged against the Service in the statement of claim.

16. Relying on both Order 19, Rules 27 and 28, the two defendants then brought this motion, seeking an order that the pleadings

disclosed no stateable cause of action against either of them, or alternatively an order pursuant to the inherent jurisdiction of the

High Court, dismissing the claim on the basis that the proceeding against them was frivolous, vexatious, and bound to fail.

17. Having heard the application, Hedigan J. delivered an ex tempore judgment, confining himself to reaching conclusions, under Order

19, Rule 28. He made no finding on the basis of the inherent jurisdiction of the Court. Later, for the purpose of this appeal, the judge

furnished a report to this Court setting out what occurred in his court, and the basis of his conclusions. The fact that the judge’s

decision was diminished in this way has consequences considered later in this judgment.

18. As described earlier, Margaret O’Neill, the Acting Director of Circuit and District Court Operations in the Courts Service, swore a

grounding affidavit for the High Court motion. She deposed that the statement of claim did not contain any factual allegations against

the Courts Service, either as an entity, or against any of its officials. She referred to s.5 of the Courts Service Act, 1998, which

confines the duties and functions of the Courts Service in law to the management of the courts, the provision of support services for

judges, the provision to the public of information on the courts system to the public, the management and maintenance of court

buildings, and the provision of facilities for court users. The Service holds no legal responsibility for the actions of judges. Ms. O’Neill

referred to s.9 of the 1998 Act which provides that no function conferred on, or power vested, in the Courts Service, its Board, or

the Chief Executive under the Act, should be exercised so as to interfere with the conduct of that part of the business of the courts

to be conducted before one or more of the judges, or impugn the independence of (a) a judge in the performance of his or her

functions, or (b) a person, other than a judge, in the performance of limited functions of a judicial nature conferred on that person by

law. In effect, this section distinguishes between the role of judges carrying out their judicial function, and the administrative role of

the Courts Service. Insofar as any alleged actionable wrong was alleged with particularity, it was against a judge or judges in signing

the order; but there is also an allegation against the unnamed District Court clerk, an employee of the Courts Service.

19. Mr. Tracey served a notice to cross-examine Ms. O’Neill on the 6th January, 2009. But he did not file any replying affidavit. In the

course of submissions in the appeal to this Court, Mr. Tracey suggested that he had certain matters which he wished to put in cross-

examination to Ms. O’Neill, as to the circumstances surrounding the issuing of the s.53 prosecution summons against him. Mr. Tracey

did not, however, inform this Court of these matters. In the event, therefore, the only evidential material before the High Court judge

was Ms. O’Neill’s affidavit, which simply dealt with factual material, and described the legal status of the Courts Service. There were

no factual matters in controversy before the High Court. There were no conflicts of evidence which required to be resolved. In

hearing the motion, the High Court judge was, of course, entitled to have regard to both s.5 and s.9 of the Courts Service Act, 1998.

It is necessary to emphasise that an application made under Order 19, Rule 28, focuses entirely on the content of the statement of

claim, which either discloses a cause of action, or does not. Against this background, the High Court judge informed Mr. Tracey during

the hearing of the motion that there was no basis for a cross-examination of Ms. O’Neill, or anyone else.

Right to Cross-Examine

20. The plaintiff submits he was denied a right to cross-examine Ms. O’Neill. It is necessary to have regard to the scope of the

application before the High Court. An application under Order 19, Rule 28, concerns only the statement of claim itself. As pointed out

earlier, there was no factual issue to be resolved. The task facing the High Court judge was, therefore, confined to considering the

content of the claim; but not to consider any underlying merits of the case. Had the plaintiff wished to raise some matter which he

wished to put in issue before the judge in the context of the motion, it would, at minimum, have been necessary for him to swear an

affidavit setting out this material. Even then, the judge would have had to determine whether what was contained in any replying

affidavit had relevance to the scope of the application before him. It is true that Order 40, Rule 1, RSC 1986, provides that a court

may, on the application of either party in a motion or other application, order the attendance for cross-examination of a person

making an affidavit. This is a matter of judicial discretion to be exercised very sparingly in applications of this kind, to be determined

on the facts of the case. Cross-examination will be very rare in motions of this type. But having regard to the scope of this particular

application, and the absence of any issue evidently in dispute, the judge was undoubtedly correct in disallowing cross-examination.

What was in issue before him were purely matters of procedure. There is no doubt but that in a substantive trial the plaintiff will,

undoubtedly be entitled to the entire range of fair procedures identified in the Rules. The judge was correct in disallowing the

application to cross-examine. It is necessary then to consider the position of the two defendants.

The Judge’s Conclusion regarding the Sixth Named Defendant

21. Hedigan J. held that the entity named as the sixth defendant, the “Dublin Metropolitan District Court”, was not a legal person or

body capable of being sued as a party to legal proceedings and, therefore, incapable of being joined as a defendant. He held it did not

enjoy any legal personality which might render it amenable to be sued.

The “Dublin Metropolitan District”

22. It is appropriate to deal with this point in a little more detail. There is a lengthy definition of the term “District” contained in the

definition section of the District Court Rules, 1997. There, the term “District” is defined as meaning one of the districts created in

exercise of the power conferred by s.22 of the Courts of Justice Act, 1953, and continued in being by virtue of s.32 of the Courts

(Supplemental Provisions) Act, 1961; or, as the case may be, created in exercise of the power conferred by s.26 of the Courts of

Justice Act, 1953, as amended by s.43 of the Courts (Supplemental Provisions) Act, 1961, s.16 of the Courts Act, 1971, and s.29 of

the Courts Service Act, 1988. The term is to be construed as including the Dublin Metropolitan District. (See District Court Rules

1997, “Interpretation of Rules”). Of direct relevance is the fact that the term “Dublin Metropolitan District” is itself defined in the

same Rules as meaning the district styled and known as the Dublin Metropolitan District, (emphasis added) established in accordance

with section 47 of the Courts Officers Act, 1926, declared to be the Dublin Metropolitan District, in accordance with section 64 of the

Courts of Justice Act, 1936, and described and defined in the District Court Districts (Dublin) Order, 1945 (S R & O. 1945, No. 279),

and varied by the District Court Districts (Dublin) (Amendment) Order, 1982 (S.I. No. 88 of 1982).

23. At the risk of being otiose or circular, what is defined as the Dublin Metropolitan District, therefore, is simply that a court district

having defined geographical boundaries. As such, it is not an entity having legal personality capable of being sued. It cannot be joined

as a party to legal proceedings. In the words of Order 15, Rule 1, RSC 1986, as amended, it cannot be properly alleged that a

substantive right to relief or damage exists, or could exist, against what is, in effect, merely a description of a court venue. On

occasion, express or implied reference is made in judicial review proceedings, by implication or otherwise, to judges of the Dublin

Metropolitan District. But that is in the entirely different context when an order is made in the High Court directed to District Court

judges. But this does not render the district itself a legal person potentially amenable in court proceedings, or some form of damages

claim. It is impossible to conceive how a claim for an actual wrong could appropriately be brought against a District Court area, or

how relief could be granted against it. This claim was unsustainable and, therefore, frivolous and vexatious. I would uphold the

judgment of the High Court on this point.

The Courts Service

24. There is, however, the allegation as to the alleged conduct on the part of a District Court clerk. This claim was not fully

particularised, either in the statement of claim, or in the reply to particulars. For a cause of action such as misfeasance in public

office to be sustainable, a plaintiff would have to allege that conduct by a public servant was motivated by malice or ill-will or

knowing illegality. There is no such specific plea in these proceedings. Nonetheless, the allegation, as it stands, subsists as part of

the claim. Furthermore, the order relied on was included in the evidence and appears to show that a clerk certified the order was a

true copy of the original. It does not appear that the signature complained of goes to the validity of the order, or even on Mr

Tracey’s case is in any way wrongful - he asserts that the order was indeed in that form, i.e. signed by the judge in question, Judge

Fitzpatrick, but contends this was unlawful. All this is without adverting to terms of the District Court Rules on signature of orders

already referred to. However, these matters were not considered or addressed on the appeal before this Court and there remains, at

minimum, a prima facie allegation pleaded against one of the employees of the Courts Service. Can the Courts Service then avail of

Order 19, Rule 28 to strike out? I am not persuaded that this can be done under this Order and Rule. In expressing this view, I do not

preclude the possibility that an application might be made to the High Court to strike out the proceedings against the Courts Service,

but this time based upon the inherent jurisdiction of that court. In such an application, different legal criteria would arise. These are

described in the case law. Here the High Court judge did not adopt the alternative course of striking out the claim by reference to

inherent jurisdiction of the court, notwithstanding that the alternative relief was sought in the notice of motion. This discrete issue

did not, therefore, arise for consideration on appeal in this Court. No submissions were made on the point on appeal. It would be

unfair for this Court to itself invoke this inherent jurisdiction without the parties having been given the opportunity of addressing the

point. Such application might, if necessary, be made at first instance, based on such grounds as there may be for such application. A

new application to strike out the claim against the Courts Service, relying on the different and distinct basis of inherent jurisdiction of

the Court, would not be res judicata by reason of the prior application or this judgment.

Concluding Observations

25. This appeal took up a day of court time. Mr. Tracey was given latitude to make his submission. He chose to cite very many legal

authorities in his written submissions. As a consequence, in light of Mr. Tracey’s status as a litigant in person, the defendants’

solicitors were requested to prepare what transpired to be three large folders of authorities, containing no less than 54 legal texts and

judgments, including provisions of the Constitution, and the European Convention on Human Rights. This comes at a cost. In fact, the

legal principles applicable in this area are very well established. It was unnecessary to refer to the legal authorities in the appeal.

There may come a point when, even well resourced opposing parties, can not reasonably be asked or required to assist personal

litigants in preparation of a case. Compliance with the rules, with practice directions, and with time tables, are duties which fall on all

parties to legal proceedings, whether or not they are legally represented. After due warning, a fundamental absence of compliance

with the rules, and practice directions, or consistent dilatoriness, and failure to progress a case for years, may, in itself, be a basis for

orders staying proceedings, on whatever terms are just.

26. I also would wish to re-emphasise that a court, of whatever level, is entitled to engage in court management, including identifying

relevant legal authorities. Legal submissions too must be relevant. Courts are entitled to identify what is material and immaterial to

the issues to be considered, so as to achieve a just and expeditious resolution of the substance of that issue between the parties to

litigation. Parties must be ready to take what steps are necessary to ensure their case is prosecuted effectively. Appeal courts will

often be slow to interfere with case management orders or directions.

27. Finally, one cannot ignore the fact that the complaints in these proceedings refer to matters said to have occurred now some 12

years ago. The High Court judgment under appeal was delivered some 8 years ago. This appeal only came on for hearing as a result of

initiatives from the office of the Supreme Court, calling upon the plaintiff, as appellant, to indicate whether or not the appeal was

proceeding. Delay very frequently defeats justice. I do not say it will here, but that is the hazard of long drawn-out proceedings. I

would dismiss the appeal with regard to the sixth named defendant, but allow the appeal with regard to the seventh named

defendant.