Supreme Court dismisses appeal against High Court orders dismissing claim as frivolous, vexatious, and abuse of process.

THE SUPREME COURT

[Record No. 396/12 & 397/12]

[High Court Record No. 2010 2676 P]

MacMenamin J.

Dunne J.

Peart J.

BETWEEN:

KEVIN TRACEY AND KAREN TRACEY

PLAINTIFFS/APPELLANTS

V. PATRICK CROSBIE, JAMES GRAHAM, CROSBIE & GRAHAM AUCTIONEERS, NOEL TIERNEY, JOSEPH SMITH, JOHN O’HAGAN,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019

1. These two appeals are against orders made by the High Court, Ryan J., on the 23rd July, 2012. Appeal No. 396/2012 relates to an

order dismissing the appellant’s claim against the fifth to the eighth named respondents. Appeal No. 397/2012 relates to an order

dismissing the claim against the first, second and third respondents. This judgment is one of six delivered on the same day concerning

appeals brought by the appellants against High Court orders. Although different in nature, this judgment may, for reference purposes,

be read in conjunction with that delivered by this Court today in Kevin Tracey v. Irish Times Limited & Others, Appeal No. 454/2011.

2. On the 15th March, 2010, the appellants herein brought High Court plenary proceedings against all the respondents to these

appeals. They claimed damages for negligence, abuse of process, perversion of the course of justice, deceit, fraud, financial loss,

breach of contract, mala fides, malfeasance in public office, violations to the “rules of Irish law”, natural law, constitutional justice

and human rights, infliction of extreme stress and loss, acute and continuous disruption to their lives, infliction of distress and harm to

them by the “wilful infringement of”, and failure to vindicate, the rules of Irish law, natural rights, constitutional law, European

Convention on Human Rights (ECHR), and other rights. The appellants claimed damages against the respondents, their officers,

servants or agents, and each of them.

3. On the application of the respondents, the High Court, (Ryan J.), dismissed the appellants’ claim against the first, second and third

named respondents, on the grounds that the claim was frivolous and vexatious, and contained scandalous or irrelevant material (O.19,

r.27 RSC 1986). He held that the proceedings disclosed no cause of action against the fifth to the eighth named respondents (the

State respondents). The High Court ordered that the appellants’ claim against the first, second and third named respondents be

dismissed, as being an abuse of process. Additionally, the High Court also made an order, (an Isaac Wunder order), to the effect that

the appellants be restrained from instituting any proceedings whatsoever, whether by summons or notice of motion, against any or all

of the respondents herein, save with prior leave of the President of the High Court. The appellants were also directed to pay costs.

The appellants now appeal against those orders.

4. As a preliminary, it should be noted that among the reliefs claimed in the appeals is to have their case as pleaded heard in the High

Court by a judge and jury. But this is not a defamation action. Nor is it an action for false imprisonment. There is no right to a trial by

jury.

5. The appellants claim that Ryan J. had before him evidence provided on affidavit by the second named appellant, dated the 22nd

June, 2012, and filed on the 27th June, 2012, to the effect that the first named appellant had been certified medically ill, and unfit for

court, until September, 2012 at the earliest. Mr. Tracey, who appears for himself, and his wife, Karen Tracey, makes reference to two

further medical reports forwarded to the Chief Registrar of the High Court, dated the 18th October, and 9th November, 2011, and also

to additional medical reports supplied dated the 6th March, 2012, supplied on 12th March, 2012. It should be noted that, in fact,

there were two plaintiffs in the original proceedings. While understanding that Mr. Tracey might himself wish to be the person to make

submissions, in fact, both appellants, as plaintiffs, had equal duties to the court to attend, and where necessary to make

submissions, or to sufficiently explain their non-attendance.

Background

6. The background to this case goes back to the year 2004. It is necessary to make entirely explicit that what follows are simply

allegations, which have not been proved or substantiated in any court of law. The first to the fourth respondents, who are named as

defendants in the proceedings, utterly contest the truth of these allegations. What follows, therefore, is a description of what was

claimed in the High Court proceedings brought by the appellants, and the appellants’ submissions both written and oral. The

circumstances of the first named appellant’s non-attendance in the High Court are, in some respects, similar to those outlined in the

Irish Times judgment cited earlier. As a matter of fact, and law, whether these allegations against the first to the fourth named

respondents are true or not is not relevant to the ultimate issue for determination, which is, whether the proceedings were an abuse

of process. Even accepting that there was an explanation for the appellants’ non-attendance in court, the true question is whether

the High Court proceedings which the appellants initiated did come within the framework of an abuse of process.

7. The appellants’ narrative is that, at the time in question in 2004, they visited the first, second and third named respondents, who

are auctioneers in Cootehill, and expressed an interest in a property consisting of a site for a house and lands in County Cavan. They

made an offer to the first named respondent, which was accepted. The appellants say that they agreed to meet the fourth

respondent, the vendor, at the property on the 28th October, 2004, and that the first and fourth named respondents were there to

meet them on that day. The appellants’ case is that the first named respondent, out of earshot, approached Mr. Tracey and stated

that part of the open site to the Cootehill side of the house which he was buying was not included in the description of the premises

that is the site under negotiation, and that part or all of this adjacent site was for sale for €18,000. The appellants’ case is that they

were told that they did not purchase that open site, there would be a danger that someone else could build a house there, which

would overlook their property. It is further claimed that, after further consultation, the fourth named respondent said he would accept

€14,500 for this site, which was to be paid to him in cash.

8. The appellant’s case is that they were coerced into making this additional payment, and that it was not until they got sight of the

deeds of the property, and reviewed the drawings, that they realised they had been deceived in “paying twice” for the same piece of

ground. They claim that, when they checked the planning history, permission for the construction of two houses on the site had

already been refused, and that what happened amounted to a fraud, that €14,500 was effectively “stolen” from them, and that they

unavailingly reported this to the guards.

9. The appellants case was that they issued proceedings by Civil Bill in the Circuit Court in Cavan, on the 13th July, 2007. (2007

Record No. 231/2007 Northern Circuit). They later claimed in the High Court proceedings that, on several dates between the 12th

November, 2007, and the 16th March, 2008, they were mistreated in Cavan Circuit Court at various stages of these Civil Bill

proceedings. The fifth named respondent is the County Registrar for the County of Cavan; the sixth named respondent was the then

Circuit Court judge, His Honour John O’Hagan; the seventh and eighth respondents are Ireland and the Attorney General. It is alleged

that Ireland and the Attorney General are vicariously liable for the alleged misconduct of the other State respondents. Whether the

reference to the 12th November, 2007 is correct, or an error, is not material to the matter to be determined on this appeal.

10. The appellants further claim that, on what they say was the scheduled trial date of the Civil Bill, that is, the 3rd November, 2009,

the Circuit judge refused to hear their motions, wherein they sought reliefs, including discovery and inspection. They claim that His

Honour Judge O’Hagan had promised that he would hear these motion at a previous Circuit Court hearing in Monaghan on the 27th

October, 2009. They contend this denial was a deliberate attempt to pervert the course of justice.

11. They further contend that, following the earlier Circuit Court proceedings in Monaghan on the 27th October, 2009, they filed a

notice of appeal to the High Court. This was dated the 30th October, 2009. They complained there that all the motions, including

their motion for discovery against the first four respondents, had been adjourned to the 3rd November, 2009, and that there had been

an absence of fair procedures and compliance with rules.

12. There is no evidence, however, that, after filing the notice of appeal on the 30th October, 2009, the appellants ever applied to

the High Court to stay the Circuit Court proceedings. (See O.61, r.6 Rules of the Superior Courts 1986). In the absence of evidence

of a stay, there is no basis for a contention that the Circuit Court judge acted in excess of jurisdiction in proceeding to further hear

the matter on the 3rd November, 2009. Filing a notice of appeal does not constitute an automatic stay.

13. But what is claimed next is one of the key contentions. The appellants now claim that, despite these earlier alleged procedural

irregularities, which took place on a number of days before the County Registrar and the Circuit Court, the Circuit Court trial of their

action against the first to the fourth named respondents actually went ahead on the 3rd November 2009, despite the court being on

notice that the matters had been appealed to the High Court, and stayed by that court. The appellants claim that on that date they

were present with witnesses, and did not participate, but observed the proceedings.

14. The appellants then claim that, some months later on the 16th March, 2010, and without notice to them, and without their

knowledge, a second trial of the same Circuit Court case took place before the same Circuit Court. They complain this happened while

their appeals were pending before the High Court. They say the Courts Service arranged for a different judge from Dublin to preside

over this allegedly “unlawful” second trial, and that the court facilitated this second trial, knowing it to be a perversion of the course

of justice, and at which they were not present. If this all occurred, it would be very remarkable and irregular.

15. But Mr. Tracey has been utterly clear and explicit in his written and oral submissions to this Court. He maintains that the Circuit

Court heard the full Circuit Court action on the 3rd November, 2009, and again heard the same Circuit Court proceeding on the 16th

March, 2010, without notice to him, or to his wife, Karen Tracey.

16. It is necessary first to consider the non-attendance issue of the appellant’s non-attendance in the High Court hearing before

Ryan J., when the orders under appeal were made.

Non-Attendance in the High Court

17. Before the High Court, (Ryan J.), there was an affidavit of Karen Tracey sworn on the 22nd June, 2012. This referred to medical

evidence from Dr. McDonnell, which certified that the first named appellant was suffering from persistent dizziness and vertigo,

resulting in marked balance and mobility problems, and he would be unfit for work or to attend court for the next six months, at which

point his clinical situation would be reviewed. There was also a report from a qualified medical specialist at the Eye & Ear Hospital, to

the effect that the first named appellant’s functional deficits continued to prevent him from performing his normal daily activities. Ms.

Tracey’s affidavit contained complaints against the solicitors for the State respondents, and of alleged delay on the part of the

respondents in filing defences. The affidavit contained a series of general assertions of corrupt practice on the part of the first four

respondents, and an assertion that the fifth respondent had confirmed that there had been a fraud, and further alleged mala fides

concerning the alleged relationship between the first and fifth respondent. But the affidavit did not contain any explanation for the

duplication between the Circuit court proceedings and the subsequent High Court proceedings.

18. The issue of non-attendance is also considered in Tracey v. Irish Times, Appeal No. 454/2011, referred to earlier. Prima facie,

there was evidence before the High Court of the first named appellant’s indisposition. But there was no sufficient evidence, or

explanation, as to the absence of the second named appellant. To now say, many years later, that she was caring for the first named

appellant, or had to mind their child, is not a sufficient explanation without more information. It is an unfortunate fact that many

people with children have to attend court, and have to make arrangements for their care. In fact, there was no explanation before

Ryan J. for non-attendance beyond the material outlined. But I do not regard this as, in itself, determinative. Even accepting there

had been some earlier explanation for the first named appellant’s absence, the second consideration is what order this Court should

now make, bearing in mind that the Court may consider the substance of the application, and may reverse, remit, or affirm the High

Court order. To answer that question, it is necessary to refer to the affidavits sworn on behalf of the respondents.

The Respondents’ Case

19. To say there is a difference between the appellants’ claims, and the respondents’ case is something of an understatement.

Counsel for all respondents join in their description of the history of events, although the first to the fourth named respondents were

more directly concerned in the Circuit Court case.

20. In fact, the Cavan Circuit Court proceedings were not the first time the matter was brought to court. The appellants sued the

first four respondents in Civil Bill proceedings brought on the 16th February, 2007, Dublin Circuit Record No. 1315/2007. There, they

made the same claim for deception and fraud with intention to steal a sum of €14,500 in connection with the property-purchase.

Counsel for those respondents brought a motion to have those proceedings brought in the Dublin Circuit Court struck out for want of

jurisdiction. By order of the 24th April, 2007, the Dublin Circuit proceedings were transferred to the Circuit Court in the County of

Cavan with costs reserved. However, the appellants discontinued those Circuit Court proceedings on the 9th July, 2007. They served

notice of trial in the second set of Circuit Court proceedings on the Northern Circuit on the 12th September, 2008.

The Circuit Court Orders

21. In this appeal, Mr. Frank Martin, B.L., counsel for the first to the third respondents, referred this Court to a series of court

documents prepared for the appeal. As well as the earlier discontinued Dublin Circuit Court proceedings, he next referred to an order

in the Northern Circuit proceedings, made on the 27th October, 2009. That order was made in response to a motion by the appellants

to adjourn “the hearing of the main action listed for hearing on the 3rd November, 2009”. The order of the 27th October, 2009

recites:

“The court doth order:

Adjourn hearing of this motion to 10.30 a.m. on 3rd November, 2009, and on the hearing of this motion and other

motions listed on 3rd November, 2009, prior to the commencement of the full action, an order will be made in relation

to whether the action proceeds on said date.”

22. The meaning is clear. On the 27th October, 2009, the Circuit judge determined that, on the 3rd November, 2009, he would

determine the motions, and prior to hearing the substantive case then determine whether, and if, the Circuit Court action brought by

the appellants would proceed on that day.

23. The appellants maintain that the full action did proceed on the 3rd November, 2008. But a further order is exhibited. This was

made by the Circuit Court on the 3rd November, 2009. Referring to the appellants as “plaintiffs”, and the first three respondents, as

“defendants”, it recites that:

“having been duly served with a Civil Bill, and the same coming for hearing before the court this day, on motion on

behalf of the first, second and third named defendants, dated the 1st May, 2009, for an order dismissing the plaintiffs’

claim for their failure to comply with discovery order of this court. Whereupon, and on reading the pleadings and

documents filed herein, including the affidavit of discovery sworn by the plaintiffs, and on hearing what is offered by

counsel for the first, second and third defendants,

the court doth order:

That the plaintiffs have until the 1st January, 2010 to file a proper affidavit exhibiting all documents within their power

and procurement, the court being satisfied that this has not been done to date. Adjourned further hearing of this motion

to the first motion day of the sitting next term.”

24. This court order makes clear that the full trial did not proceed on the 3rd November, 2009, as the appellants now claim. It

demonstrates that the matter was adjourned to the first motion day of the next sitting term. This is entirely inconsistent with the

appellants’ case.

25. The Court has also been referred to a transcript of the proceedings which took place on the 3rd November, 2009. At the appeal

before this Court, Mr. Tracey did not accept the transcript as reflecting what occurred. To ask a court to reject a transcript would

require much more than mere “non-acceptance”. It is consistent with the court order of the same date. The transcript records that

the Circuit Court judge heard lengthy submissions from Mr. Tracey in relation to the inadequacy of discovery and other procedural

complaints. But His Honour Judge O’Hagan also heard submissions from counsel for the first to the third named respondents, to the

effect that Mr. Tracey for his part had not made adequate discovery. In particular, counsel identified that an issue remained regarding

documents within the possession of Mr. Tracey’s solicitor in the sale transaction. Counsel submitted to the Circuit judge that Mr.

Tracey had claimed privilege on these at a prior discovery hearing before the County Registrar. The transcript records the Circuit

Court judge’s ruling at the conclusion of the hearing that Mr. Tracey was directed to make further discovery. The court did not

consider the substance of the claim. To reiterate, the transcript is entirely consistent with the various court orders made in the

Cavan Circuit Court on the 3rd November, 2009. But it is also consistent with what happened later.

Three orders of 16th March, 2010

26. Counsel then referred to three further orders of the Circuit Court, made in the appellants Circuit Court claim. These were all dated

the 16th March, 2010. These recite that, when the case was called on that date, there was no appearance for and on behalf of the

plaintiffs, that is the appellants, and that the court was satisfied that proper notice of the listing of the case had been given to them.

In the first such order, made by His Honour Judge McCabe, the court directed that the first, second and third named respondents

recover from the appellants the costs of a motion brought on the 8th March, 2007, which were reserved by order of Her Honour Judge

Linnane, made on the 24th April, 2007. In the second order, also made by His Honour Judge McCabe, the court directed that the

appellants’ action be dismissed by reason of their failure to comply with the order of the court dated the 3rd November, 2009, in

relation to discovery, together with costs to the defendants to be taxed. The third order recites that the action against the first,

second, third, and fourth named defendants is to be struck out, and to be taxed in default of agreement. The difference between the

second and third orders is that in one counsel for the fourth named defendant also made the application and for costs. It will be

noted that these orders, and the transcript, are all mutually consistent.

27. There is no indication that the appellants ever subsequently applied to the Circuit Court to have any of these orders or

proceedings set aside by the Circuit Court on the grounds of error, mistake, or inadvertence as to the listing date. If there had been a

procedural irregularity of the type suggested, there would have been a strong case for judicial review proceedings. There is no

evidence that the appellants ever sought to adopt that form of proceeding either. But more fundamentally, even assuming mala fides

on the part of some or all of the respondents, if the entire matter had, in fact, been determined on the 3rd November, 2009, then

why was there a hearing at all on the 16th March, 2010? Here yet another question arises: why did the appellants not press on with

the notice of appeal of the 30th October, 2009, after the hearing of 3rd November, 2009? That issue had not been addressed. Mr.

Tracey is not inexperienced in litigation. The court orders were as available to him as the other parties. Mr. Tracey did not refer to, or

exhibit, any court orders.

The Date of the Plenary Summons

28. The appellants claim they had no notice of the hearing of the 16th March, 2010. They claim what happened was a series of very

serious procedural irregularities. But the claim that they were unaware of the fact that their case was listed for full hearing on the

16th March, 2010, must also be seen in light of the fact that, on 15th March, 2010, the day immediately prior to that hearing, the

appellants initiated the High Court proceedings which the respondents now submit are abuse of process. It is, of course, possible that

the date of this plenary summons was purely coincidental. The Statement of Claim was not delivered for two years, until the 14th

March, 2012. In the Statement of Claim, the appellants pleaded that, on several dates between the 12th November, 2007 and the

16th March, 2010, (i.e. including the second trial date), they were “mistreated” in Cavan Circuit Court, and blocked from getting a

hearing of their motions on several dates, despite attempts which they made. Detailed complaints are made in the Statement of Claim

about procedural irregularities. The Statement of Claim pleads that matters pertaining to the misconduct of the first, second and third

respondents on the 3rd November, 2009, at Cavan Circuit Court, were appealed to the High Court. This Court has not been referred

to any such notice of appeal concerning events on the 3rd November, 2009. But the main reliefs in the High Court proceedings were a

repetition of the claim the appellants initiated in the Circuit Court. To initiate proceedings concerning the same cause of action as one

in extant proceedings is an abuse of process. The pleadings also contained material which was scandalous and irrelevant. It contained

unjustified complaints against the County Registrar and the Circuit judge.

29. Mr. Tracey did not appear in the High Court when the motions came before Judge Ryan. In this Court, having repeatedly

maintained that the Circuit Court had proceeded with the full trial on the 3rd November, 2009, he persisted in this contention, even

after the transcript of that day was produced, which outlined the series of exchanges between himself and the learned Circuit Court

judge on the issue of discovery. His claim that the substantive case was determined on the 3rd November, 2009 is, too, gainsaid by

the fact that all the actual orders made on the 3rd November, 2009 were interlocutory; none were final orders.

30. In this appeal, some time was spent going into the detail of the alleged financial transactions relating to the property sale

transaction. This is not relevant to the issue for determination: which is whether this High Court proceeding was an abuse of process,

in seeking to re-litigate issues already before the Circuit Court in Cavan.

31. Abuse of process can connote that the process is employed for some purpose, other than the attainment of the claim in the

action. Alternatively, it may relate to proceedings brought an improper purpose. It may relate to the initiation of proceedings without

intending ever to bring such proceedings to finality. Applications to dismiss proceedings for abuse of process can be brought for

protecting the integrity of the curial process, or, in the case of proceedings, to prevent court time being wasted to the detriment of

more deserving litigants. Such applications can also be made when proceedings contain unfounded allegations, or are brought for

improper purposes. All are considerations in this appeal. To a significant degree, the High Court proceedings constitute repetition of

the issues in the Circuit Court proceedings. Where they do not constitute repetition, they relate to assertions about what is alleged

to have happened on the 3rd November, 2009, and the 16th March, 2010. These assertions are unsupported by any evidence, other

than an affidavit sworn much later by Karen Tracey, on the 14th November, 2013. This affidavit was sworn in response to a letter

written by the solicitor acting for the first to the third respondents, seeking costs arising from the Circuit Court orders. The affidavit

states that the County Registrar, Mr. Joseph Smith, had proceeded with the two separate “Trials (hearings)” of the case, without the

appellants’ participation, and contended that the second trial before His Honour Judge McCabe took place without notice to the

appellants. The affidavit states that Ms. Tracey had written to the solicitor on several previous occasions. However, it must be seen

in the light of the evidence now before this Court. None of the appellants’ evidence addresses the fundamental fact of the duplication

of proceedings, or that they had an improper purpose, or that there was no indication that they were proceeding to finality, or that

they tended to undermine the integrity of the court process, and that they wasted court time.

32. It might be noted in passing that, amongst the papers before this Court was a letter dated 9th January, 2006 from Daragh

Murtagh, Solicitors, then acting for the appellants, addressed to Thornton & Company, the then solicitor for Noel Tierney, the fourth

named respondent. Endorsed at the base of that letter, apparently written as part of the closing process of the sale transaction,

were the words – “The closing of the within sale is in full and final settlement of any claims my clients may have of any description in

respect of the above property”.

33. The two-stage test to be applied in a case such as this has already been set out in the Irish Times judgment delivered today.

(See Tracey v. Irish Times & Ors., Supreme Court No. 454/2011). As to the first non-attendance, there was undoubtedly evidence

before the High Court that the first appellant was ill. There was no sufficient basis to explain the second appellant’s absence.

34. But the second consideration is whether this was, in fact, an abuse of process? There is no doubt that, no matter how portrayed,

these High Court proceedings can only be seen as an abuse of process. The very same issues were already before the Circuit Court,

on foot of the Civil Bill brought by the appellants themselves. It appears the appellants were dissatisfied with what had happened on

the 27th October, 2009. This caused them to file the notice of appeal dated the 30th October, 2009. What happened to this appeal

has not been explained. But the appellants’ narrative of what is said to have happened in the Circuit Court on 3rd November, 2009 is

not born out by the objective evidence. It is inconsistent with all the court orders, the transcript of 3rd November, the fact of the

hearing on the 16th March, 2010, and the orders made on that date. What is, however, noteworthy from the transcript is that Mr.

Tracey expressed his dissatisfaction with the fact that his motions for discovery had not been dealt with, and had been adjourned.

He, therefore, expressed his unwillingness to engage further in the proceedings because he claimed he had filed the notice of appeal.

It was on that basis he claimed that he would not participate because it was “illegal”, and that he had had to bring his witnesses to

court. The transcript records that His Honour Judge O’Hagan explained that it had not been possible to deal with the motion at sitting

in Castleblayney, County Monaghan, because there was not time. Mr. Tracey is recorded as expressing his dissatisfaction with having

had to attend court on a number of occasions, and stating that he would prefer to have the matter dealt with in the High Court.

35. The stenographer’s record also contains submissions made to the Circuit Court. Mr. Martin, B.L., counsel for the first, second and

third named defendants, and the fourth respondent, submitted to the court that the motions brought by Mr. Tracey were frivolous

and vexatious. Clearly, a substantial number of discovery motions had been brought beforehand.

36. The Circuit Court judge considered these in some detail in a ruling which he delivered. The judge was satisfied that the

respondents had made full discovery. He directed that, in the case of inspection, a member of An Garda Siochana should be present

while Mr. Tracey carried out this process. He awarded the costs of the hearing to the respondents. Mr. Martin, B.L. is also recorded

as drawing the Circuit Court judge’s attention to the fact that a third party motion for discovery had been heard by the County

Registrar concerning Mr. Daragh Murtagh, who was Mr. Tracey’s solicitor with regard to the purchase of the property. Counsel is

recorded as saying that Mr. Tracey had appeared on that non-party discovery motion, and objected to making a discovery by his

solicitor, on the grounds that some important privilege was attached to that. The stenographer’s report stated that Mr. Murtagh had

been subpoenaed for the action which had been listed for the trial, and was in the building together with his solicitor’s file. Mr. Tracey

is recorded as expressing his dissatisfaction with what occurred, and that he had furnished all the documents in the case.

37. The stenographer’s report records Judge O’Hagan adjourned the hearing of the action to next term, stating that it would be the

first on the list, and that it would go on on that date. The transcript also reports that the County Registrar would be in touch with

Mr. Tracey with regard to the date, and a final observation from Mr. Tracey that the judge should recuse himself. The discrepancies

between the appellants’ “narrative”, and the respondents’ case supported by concrete objective evidence, would require explanation.

There has been no satisfactory explanation.

Conclusion

38. Mr. Frank Callanan, S.C. appeared on behalf of the State respondents. He submitted it is impossible to conceive any conceivable

cause of action against the State defendants. I accept this submission. The judge was performing a judicial function. The Registrar

was performing functions under statute. There is no evidence they were doing anything else, or engaging in any mala fides conduct.

Assertion is not sufficient. The proceedings under review contained unwarranted and scandalous allegations of mala fides and

misconduct, none of which are supported by any evidence.

39. Insofar as any action existed in relation to the first to the fourth respondents, such rights as the appellants may have had, or

may still have, lay within the Circuit Court proceedings brought on the Northern Circuit. The High Court proceedings were brought in a

situation where there were already Circuit Court proceedings in being for the purpose of litigating the issues in question. The High

Court proceedings come within each of the categories of abuse of process outlined earlier. The High Court orders were, with one

exception, justified, and I would affirm them.

40. The learned High Court judge did, however, make an Isaac Wunder order. In fairness to the appellants, caution is necessary on

this. The appellants are involved in a wide range of other proceedings. The appellants have a constitutional right of access to the

courts; but that is subject to limitations as to observing the Rules of the Superior Courts and the law. I would not make a generalised

form of order. The orders of the Circuit Court made on the 16th March, 2010 remain good and valid orders. They were made some 9

years ago. The appellants will be restrained from procuring or seeking to re-litigate the issues raised in the Circuit Court Civil Bill, or

the High Court plenary summons and Statement of Claim, in any other subsequent proceedings, save with leave of the President of

the High Court.