High Court dismisses claim for damages against prosecutor for alleged breach of duty in criminal proceedings.

THE HIGH COURT [2022] IEHC 27 [2020 No. 7400 P.] BETWEEN ERIC JOHN SOMERS PLAINTIFF AND WILLIAM J. KENNEDY, JACK FITZGERALD, SINEAD CURTIS AND SINEAD FITZPATRICK DEFENDANTS JUDGMENT of Ms. Justice Nuala Butler delivered on the 21st day of January, 2022

Introduction

1. This case arises out of the conduct of a District Court Appeal before the Circuit Court at Clifden on 23rd July, 2019 and a subsequent sentencing hearing on 22nd October, 2019.

The plaintiff was the accused before the court on that occasion and the defendant was the local state solicitor who prosecuted the appeal on behalf of the Director of Public Prosecutions. The appeal, brought by the plaintiff, arose out of his conviction by the District Court on 7th September, 2018 of an offence under s. 13 of the Criminal Justice (Public Order) Act, 1994, namely that in August 2017 he had trespassed on a property belonging to the complainant in a manner that caused or was likely to cause fear. The proceedings currently before the court seek damages from the defendant for various alleged breaches of his duty as a prosecutor.

2. The defence filed raises a preliminary objection to the effect that the proceedings do not reveal a cause of action recognised by law. It is also pleaded that the proceedings are misconceived, that they do not relate to an actionable wrong and that the defendant is not liable for the matters pleaded. In addition, the defence as originally filed raised a plea of qualified privilege in that the matters complained of arose in the course of criminal proceedings presided over by a judge exercising powers and functions of a judicial nature.

That plea was amended before the trial, with the leave of the court, to plead as an alternative an occasion of absolute privilege on the same grounds. This amendment has become the cause of much agitation on the part of the plaintiff who regards it as “fraudulent”, a matter to which I shall return.

3. Despite these pleas clearly putting the justiciability of the plaintiff’s proceedings in issue, no preliminary application was brought by the defendant under O.19 r.28 of the Rules of the Superior Courts or pursuant to the court’s inherent jurisdiction to strike out the plaintiff’s claim. Instead the defendant relies on the power of the court under O.25 r.1 to dispose of any point of law raised by the pleadings “at or after the trial” and the consequent power under O.25 r.2 to dismiss the action if the decision on the point of law subsequently disposes of the whole action.

4. The fact that no preliminary application was brought created a consequential problem because the plaintiff served (with leave of the Master of the High Court) subpoenas duces tecum on three individuals and subpoenas ad testificandum on two individuals for the purposes of the plenary trial which was listed for hearing before the court. These individuals include the solicitor and counsel who drafted and issued the motion to amend the defence, the chief prosecution solicitor, the former deputy director of the public prosecutions and the investigating guard. All of these individuals have brought motions seeking to have the subpoena issued against them set aside. If a preliminary application to strike out the proceedings on the grounds identified in the defence had been brought, then the need for the plaintiff to prepare for plenary trial by the issuing of subpoenas would not have arisen at this stage nor would the five additional motions issued in respect of these subpoenas.

5. In the event, counsel for the defendant flagged at the outset that it was his intention to apply to have the case dismissed once the plaintiff had completed his opening.

Consequently, the court took the view that it was unnecessary to make a determination as to the compellability of the witnesses in question or the relevance of any potential evidence they might have to give until that application had been moved and decided on.

However, it is worth observing at the outset that where it is the intention of a party to seek to have the other party’s claim struck out on the grounds that it is misconceived or does not disclose a recognised cause of action or that the facts pleaded are incapable of giving rise to legal liability, it is in my view strongly preferable that this be done by way of preliminary application rather than being left over to a plenary trial. Preparation for trial can of itself be a detailed and costly exercise. If one party is of the view that the trial should never proceed, then the more pragmatic and cost-effective approach is to bring an application to have that issue determined before trial costs have been incurred. In this case I am also mindful that the plaintiff is a litigant-in-person. While such litigants are subject to the same rules as everybody else, it is, I think, fairer and more transparent that an objection of this nature be squarely made and explained on affidavit rather than being bundled into the trial of the action. Apart from obviating the need to prepare for a plenary trial that might not take place, this facilitates the personal litigant in understanding the nature of the objection being made and in responding to it.

6. However, this is not an objection that the plaintiff has taken and, as the defendant points out, the rules do allow a point of law raised by the pleadings to be determined at trial. As two days were allocated for the hearing of this action and all parties were present in court, I decided the most pragmatic course in all of the circumstances was to allow the plaintiff to open the case, then to allow the defendant make his objection to which the plaintiff could then respond. I also indicated that I would rule on this issue and that the balance of the trial, if it is to proceed, would be adjourned pending this judgment.

7. Thus, the issue before the court concerns the justiciability of the claims made by the plaintiff against the defendant and whether they should be allowed to proceed to full trial.

In order to understand how these claims arise it is necessary to look at the background to the criminal complaint against the plaintiff and the manner in which that was progressed before the courts. The following is not intended as a complete account of the history of this matter but should be sufficient for the nature and the basis of the claim now made by the plaintiff to be appreciated and to understand why it is objected to by the defendant.

In preparing this summary I have had the benefit of reading a full transcript of the 2 days at which the matter was at hearing before the Circuit Court and of the plaintiff’s subsequent application for access to the DAR. Background facts

8. The plaintiff and the complainant had previously been in a relationship and have a nowadult child together. They also had a range of business dealings together, all of which led to a complex and acrimonious fall-out to the breakup of their relationship. The alleged trespass of which the plaintiff was accused occurred at a property owned by the complainant but in respect of which the plaintiff maintained a claim to some right or interest based on works allegedly done by him. At the time of the alleged offence the complainant had a barring order against the plaintiff in respect of a different property in County Meath. She also had a safety order which, by definition, is not limited to a specific property but which prohibited the plaintiff from using or threatening violence against the complainant or molesting her or putting her in fear. The plaintiff was convicted of a breach of this barring order in Trim District Court and was sentenced to eleven months in prison of which he served four months. On appeal to the Circuit Court he was granted probation, apparently on the basis of his expressed intention to return to the United States of America where he had previously lived and worked. It has been a feature of the plaintiff’s response to the prosecution against him and of this claim that the recording of a conviction against him could have a negative impact on his potential immigration status in the USA.

9. The details of what occurred on the night of the alleged offence, being the 4th/5th August, 2017, are not relevant for present purposes. Suffice is to say that on becoming aware that the plaintiff was in the property, the complainant called the gardaí who attended at the scene and took statements from both parties. The plaintiff makes allegations of improper behaviour against the investigating guard which are the subject of separate proceedings. Eventually the plaintiff agreed to leave the property, packed up his belongings and did so.

10. The plaintiff was then prosecuted and convicted by the District Court in September 2008 and sentenced to three months’ imprisonment suspended for two years. He appealed that conviction and the appeal came before the Circuit Court in July 2019. The Director of Public Prosecutions was represented by the defendant who called three witnesses being the complainant, the investigating guard and her sergeant. The plaintiff makes allegations against the defendant as regards the manner in which he examined the complainant during her evidence-in-chief and also as regards a line of questioning in crossexamination of him, apparently prompted by a note passed to the defendant by the investigating guard. I will return to these allegations in due course.

11. The plaintiff represented himself throughout the proceeding which presented certain problems for him as he did not put to prosecution witnesses key assertions on which he subsequently sought to rely. He challenged the evidence of the complainant and of the garda witnesses (some of whom were called at the plaintiff’s request) and made allegations against the gardaí, especially the investigating guard. The plaintiff gave evidence on his own behalf and was cross examined by the defendant. The plaintiff did not dispute his presence at the property but asserted that the complainant knew he was there before she set out to travel to the property and asserted a right or interest in the property which was the subject of a separate claim. At the conclusion of the plaintiff’s evidence the trial judge gave his verdict. He found that both parts of the charge against the plaintiff had been proved beyond a reasonable doubt. Rather than imposing sentence there and then, the trial judge inquired of the plaintiff how a conviction might affect his immigration application to the USA and adjourned the matter to the 22nd October to allow the plaintiff time to sort out his US visa.

12. On the 22nd October, 2019 the plaintiff advised the court that he had not been able to make an application for a US visa as his son (a US citizen) was not in a position to sponsor him but that it remained his intention to return to the US. Again, he focused on how detrimental a criminal conviction would be to his immigration application. He informed the court that he had moved to Poland three weeks earlier and he also presented an affidavit saying that he had dropped all High Court proceedings against the complainant in respect of various properties including, apparently, the property at which the trespass was alleged to have occurred.

13. At this point in the proceedings the complainant was invited to speak. She gave a fairly damning account of her interactions with the plaintiff and did not accept the bona fides of his proposals. Ultimately, the judge took the view that the case was too serious to remove the conviction that had been imposed by the District Court. He increased the sentence to six months but suspended it for five years on the plaintiff entering into a bond and giving certain undertakings. The plaintiff makes complaints as regards the defendant’s handling of the sentencing hearing both as to the victim impact evidence given by the complainant and on the basis of an alleged failure to correct an inaccuracy in the earlier trial as regards the date on which the plaintiff gave certain undertakings to the Circuit Court at Trim. I will return to these issues in more detail.

14. Subsequent to these events two matters of relevance occurred. Firstly, the plaintiff took judicial review proceedings against the trial judge. Those judicial review proceedings were ultimately conceded by the DPP. The concession initially involved the remittal of the proceedings for re-trial at the Circuit Court in Clifden. However, the DPP then took a

decision not to proceed with the re-trial and the court was advised that the proceedings have now been formally dismissed against the plaintiff. This means that the plaintiff no longer has a conviction recorded against him arising out of these matters and there is no further prospect that he will be prosecuted in relation to them.

15. Secondly, the plaintiff made a series of complaints alleging prosecutorial misconduct against the defendant. On the 3rd May, 2020 he made a formal complaint to the Legal Services Regulation Authority (LSRA) and on 5th May, 2020 he made a complaint to the Chief Prosecution Solicitor (CPS). The response of the CPS was to write to the plaintiff advising him that it would be inappropriate to address the complaint while his judicial review proceedings against the DPP were outstanding. The plaintiff appealed this decision to the deputy DPP on 12th July, 2020. Although they do not feature in these proceedings to the same extent as the complaints made against the defendant, it is perhaps telling that the plaintiff has made criminal complaints against all of the gardaí who gave evidence in the case against him and has instituted Circuit Court proceedings against the DPP. Thus, in addition to these proceedings there is a multiplicity of complaints made and proceedings taken by the plaintiff arising out of the prosecution against him notwithstanding that as of 21st July, 2020 the plaintiff was informed that the DPP would not be defending the judicial review proceedings and that his conviction would be quashed.

16. The plaintiff’s complaint to the LSRA has featured in these proceedings because the plaintiff takes strenuous objection to a letter written by the defendant in response to this complaint, apparently advising that the DPP takes the view that a complaint made by the defendant in a criminal trial against the lawyers acting on behalf of the prosecutor should not be regarded as admissible. As the LSRA has confirmed to the plaintiff that the complaint will be dealt with on its merits, it is difficult to understand the basis for the plaintiff’s ongoing concern. Despite this correspondence being mentioned by the plaintiff on numerous occasions it is not included in the booklet of exhibits which I understand was prepared by the plaintiff and which was given to the court for the purposes of the trial. In passing I might note that nine separate booklets were handed into court on the day of the trial which is by any standards excessive. With potentially relevant documents dispersed across such a number of booklets it is difficult for any judge when preparing a judgment to ensure that all of the potentially relevant material has been identified and referenced.

Even allowing for the difficulties arising when a litigant-in-person has carriage of proceedings, the parties should make greater efforts to ensure that a smaller number of more comprehensive booklets are provided.

17. It is also difficult to reconcile the plaintiff’s obvious intent to pursue all of those involved in the criminal trial at Clifden in 2019 through the making of formal complaints and the taking of legal proceedings even after his conviction has been quashed, with his view that this attempt by the defendant to defend himself against the complaint made by him to the LSRA or the DPP’s support of a prosecution solicitor is somehow unlawful or unfair.

Whilst it is obviously a matter for the LSRA to decide whether a complaint is admissible and, if so, to decide what the outcome of that complaint should be, it must be open to a professional person against whom a complaint has been made to defend themselves by reference to the admissibility of the complaint or the substance of the complaint or both as the case may be.

18. On the other hand, the defendant relies on the exclusive jurisdiction of the LSRA to determine all issues of alleged professional misconduct against solicitors and barristers and the fact that the plaintiff has actually made a complaint in this regard, to argue that insofar as the plaintiff makes similar complaints in these proceedings against the defendant, the court does not have jurisdiction to decide these issues.

The Proceedings

19. The plaintiff originally sued not only the defendant but also three other members of the practice of which the defendant is a partner. The court was informed that proceedings have been dismissed against these three solicitors, but I have been unable to find a notice of discontinuance in the many booklets of papers with which I have been provided. The plenary summons makes very serious allegations against the defendant, namely that he unlawfully prosecuted the plaintiff, that he fabricated evidence and perverted the course of justice, that he knowingly and maliciously violated relevant ethical guidelines and that he colluded with a representative of the DPP’s office with a view to unduly influencing the case manager responsible for the plaintiff’s complaint to the LSRA. The plaintiff claims damages including exemplary and aggravated damages.

20. The plaintiff’s claims are expanded upon in the statement of claim but, as is frequently the case with litigants-in-person, the statement of claim introduces a number of additional elements not previously raised in the plenary summons. In this case they include an allegation of defamation arising during the course of the defendant’s crossexamination of the plaintiff allegedly causing the plaintiff reputational damage. Further, the statement of claim makes a series of allegations against the chief prosecution solicitor (who is not a party to the proceedings) alleging that she provided inappropriate assistance to the defendant in the context of the plaintiff’s complaint to the LSRA, a refusal on her part to investigate the plaintiff’s formal complaint in respect of the defendant and that the concession of the plaintiff’s judicial review was a “disingenuous attempt” by her to deflect his attention from his insistence that she address his complaints. Some of these complaints are barely intelligible and make little logical sense, but as the chief prosecution solicitor is not a party to the proceedings I do not propose to consider them further.

21. The main complaints against the defendant are to the effect that he knowingly and maliciously violated the Law Society of Ireland’s Professional Code of Conduct for Solicitors and the DPP’s Guidelines for Prosecutors thereby depriving the plaintiff of a fair trial. It is claimed that he breached his duty to the court, that he was biased and vindictive towards the plaintiff and that he maliciously intended to prejudice the plaintiff.

No reason is suggested as to why the defendant who, apart from his professional role as prosecutor, is otherwise entirely unconnected with the plaintiff, the complainant and the property, would have been biased or vindictive towards the plaintiff. Three specific events were referred to.

22. The first of these is a line of cross examination engaged in by the defendant prompted by a note passed to him whilst he was on his feet by the investigating guard. The plaintiff attaches particular significance to the passing and receipt of this note but as anyone familiar with litigation, including criminal litigation, will be aware it is neither unusual nor improper for a lawyer to receive instructions in this fashion during the course of examining a witness. Of more significance is the assertion that the defendant knowingly or recklessly misled the court by putting questions to the plaintiff on the basis that he had given an undertaking to the Circuit Court at Trim to stay away from the Clifden property prior to the date of the alleged trespass. Subsequent to the court hearing the plaintiff sent the defendant an email with a number of attachments confirming the actual date on which the undertaking was given and, apparently, the contents of the undertaking. The text of the undertaking was not contained in the booklet of exhibits provided to the court, merely the email to which it was attached, so I can make no observations as regards the actual scope of the undertaking given to the Circuit Court at Trim. The plaintiff asserts that the defendant was under an obligation to correct the record in this regard at the subsequent sentencing hearing but, in breach of his professional and ethical obligations, he refused to do so.

23. The second event is the plaintiff’s application for access to the DAR (Digital Audio Recording) for the two days of the Circuit Court hearing. This application was made to the Circuit Court on 26th November, 2019. The defendant raised a preliminary objection on the basis that the plaintiff’s application should have been, but was not, grounded on an affidavit. The plaintiff pleads that this was a baseless legal objection raised in an attempt to deny the plaintiff access to the record of his trial for the purposes of his judicial review and of his various complaints. The plaintiff correctly points to O.40 r.11 of the Rules of the Superior Courts which allows an affidavit to be sworn in a foreign country before a notary public. However, the objection taken by the defendant did not concern the identity of the person before whom the affidavit was sworn but rather questioned whether it had been properly sworn. The plaintiff has provided an extract of the document which grounded his application for the DAR which he says is an affidavit which was sworn before a notary public in Poland. On the basis of this extract it appears that the printed jurat is not in fact signed by the notary public. The text of the jurat and its signature by the notary public is supposed to confirm that the affidavit has been sworn before him. There is a partial stamp in the top right hand corner and it is difficult to tell from the photocopy whether that stamp is on the page in question or on some document or page lying underneath it at the time it was photocopied. In any event, in my view the document is sufficiently unusual in its form for it to be unsurprising that the defendant raised an objection to it. It is unnecessary at this stage to decide whether the document was in fact sworn in compliance with the rules and I draw no conclusion either way on this issue. This is because Judge Groarke, despite agreeing that the document had not been properly sworn, dismissed the defendant’s objection and granted the plaintiff access to the portions of the DAR which he requested.

24. It is extremely difficult to understand why the plaintiff is maintaining legal proceedings as regards an objection which although raised and found to be valid, was also dismissed in the space of a few moments, so that it had absolutely no bearing whatsoever on the plaintiff’s ability to access the material requested nor to pursue his judicial review and his various complaints. Unfortunately, the plaintiff’s approach in this regard is typical of many litigants-in-person. Any issue taken with an application or argument made by them is characterised as being unlawful or made for an improper purpose. There does not seem to be any appreciation that in an adversarial legal system the opposing of applications will be part and parcel of the process. Further, whilst applications made or arguments advanced by the opposing party will often succeed, they will also sometimes fail and neither the making of an objection nor the failure of that objection is of itself an indication that the opposing party or its legal team have acted improperly.

25. The third event to which the plaintiff’s complaints are directed is the response of the defendant, provided with the support of the chief prosecution solicitor, to the plaintiff’s complaint to the LSRA. The plaintiff expressly pleads that the defendant’s response to the LSRA constituted an overt attempt to coerce the LSRA into dismissing the plaintiff’s complaint and, “unethically, attempting to apply undue influence” by referencing the DPP’s support. As a plea this is barely comprehensible. The defendant necessarily has a full right to defend himself in respect of any complaint made about him to the LSRA. If the DPP is supportive of the defendant’s position, then the defendant is certainly entitled to make that known to the LSRA. It is simply nonsensical to suggest that by attempting to defend himself and by showing his client’s support for his position the defendant is acting unethically. As a statutory body the LSRA will, no doubt, have robust procedures in place to ensure that its decision-making processes are fair and comply with all statutory requirements. It will not be easily influenced, let alone unduly influenced, by a single letter whether from the complainant or the subject of the complaint, regardless of its contents.

26. I have already outlined the elements of the defence which were canvassed at the hearing all of which concern the justiciability of the plaintiff’s complaints. In fairness to the defendant I should also record that the defence denies in full the substance of the allegations made in the statement of claim and positively pleads that the defendant was exercising a duty vested in him for the benefit of the public and at all times acted honestly, reasonably and bona fide in an attempt to perform his duties. Further, it is pleaded that if there was an infringement of the plaintiff’s rights any such infringement was unintentional and accidental and that there was no impropriety on the part of the defendant.

The Plaintiff’s Opening

27. In opening his case the plaintiff indicated that he was making four points. The defendant pointed out, correctly, that not all of these had been pleaded. This objection highlights yet another procedural difficulty arising from the fact that the defendant did not bring a separate preliminary application to have the plaintiff’s proceedings struck out. The jurisprudence on applications to strike out proceedings indicates that the court’s jurisdiction is one which should be exercised sparingly and should not be exercised at all if an amendment to the pleadings would save the case. If a preliminary application is brought and such an amendment is identified, then an application can subsequently be made to amend the pleadings and all attendant issues, such as discovery consequent to the amendment, can be dealt with before trial. Where an application to strike out the proceedings is made at trial and does not succeed because an amendment which might potentially save the proceedings is identified, then the likelihood will be that the trial will not be able to proceed pending the taking of those consequential steps. There may be differences as between an application based on O.19, r.28 which focuses on the pleadings in the case and an application based on the court’s inherent jurisdiction which allows some limited interrogation of the facts and the evidence supporting the pleaded case. In latter instance, it may only become apparent at the trial that a party is unable to call any evidence to support the pleaded case such that the case is then bound to fail. However, the contention that the pleadings do not disclose a reasonable cause of action (as opposed to disclosing a cause of action which is nonetheless bound to fail) does not depend on the ability of the opposing party to call evidence to support the pleaded case.

Logically, I think there must be very limited scope for the objecting party to make a pleading point in conjunction with an application to strike out under O.19, r.28.

28. I propose to consider all of the issues raised by the plaintiff in his oral argument as, if any of them give rise to a stateable case, then the plaintiff should be allowed to amend his pleadings to pursue that case rather than having his proceedings struck out. The first argument made by the plaintiff was that the defendant had done everything he could to thwart the pre-trial process and the plaintiff’s ability to obtain the evidence in advance of the court hearing. He made a similar complaint in relation to the objection raised by the defendant to his application for the DAR. Whilst there is reference in the transcripts to an application for a Gary Doyle order and to requests being made by the plaintiff for statements from the gardaí, there is no clear evidence before the court as to how it is contended that the defendant thwarted or attempted to thwart the plaintiff in this regard.

The plaintiff has recently applied for and been granted access to the DAR for the pre-trial applications but these were not before the court and the plaintiff did not seek to adjourn the proceedings so as to have them available. As far as I can gather, and it is difficult to be certain of this from the information presented to me, it may be that members of An Garda Síochána who were called at the plaintiff’s request had not made prior statements since they were not part of the prosecution’s case against the plaintiff. The plaintiff was certainly provided with some material in response to these requests and his cross examination of the garda witnesses called by the defendant as part of the prosecution case is replete with objections to the fact that their statements are not contemporaneous with the events the subject of the prosecution but were made at a later stage for the purposes of complying with those requests.

29. This heading also appears to include the fact that the complainant gave evidence at the sentencing hearing which the defendant described as being of a “victim impact nature”.

The plaintiff sought a “victim impact statement” in advance of the hearing and this was not provided, quite possibly because the complainant did not make a formal statement but gave her evidence orally on the sentencing date.

30. The second element of the plaintiff’s complaint concerns the line of cross examination adopted by the defendant on foot of the note handed to him by the investigating guard details of which have been set out above. The plaintiff contends that this note was later shown to be untrue or fabricated so that the defendant had stated something that was factually incorrect to the court. He complains that the defendant failed to correct this at the sentencing hearing and that the judge referred to the undertaking in finding the plaintiff guilty. In fact, the transcript does not show events unfolding in the manner described by the plaintiff.

I accept that a note was handed to the defendant in the course of cross examination but, as I have indicated above, there is nothing untoward or improper in itself about this. The transcript shows the defendant raising with the plaintiff the appeal from his conviction in the District Court to the Circuit Court at Trim. The defendant asked the plaintiff to confirm that this was on the 20th January, 2016 and the plaintiff confirmed this date. At that point the judge intervened and suggested that rather than 2016 it must have been 2017 as the safety order and barring order were not made until 2016.

The plaintiff appeared to confirm the judge’s correction by saying “yes, yes, yes, yes”. The defendant then proceeded with a line of questioning based on the Circuit Court judge in Trim having applied the Probation Act in light of an undertaking given by the plaintiff on the date in question. However, when it was put to the plaintiff that that undertaking included an undertaking that he would stay away from the property in Clifden, the plaintiff very clearly disputed that and stated that he did not give an undertaking to stay away from the Clifden property and that the Circuit Court judge in Trim did not require such a restriction to apply.

When the defendant put to the plaintiff his instructions that on the 20th March (no year specified) a sworn undertaking was given by the plaintiff at Trim Circuit Court to stay away from the complainant’s house at Clifden, the plaintiff disputed that and confirmed that the undertaking related only to the property in Meath. At a later point in the transcript when the judge reached his conclusions he states “There’s some issue raised by [the defendant] as to what the form of undertaking was but that’s not really the heart of the issue”. The judge went on to identify that in circumstances where the complainant had obtained a safety order and a barring order against the plaintiff the issue was “was it wise for him then to move into and reside” in her property.

In the preceding paragraph the judge had confirmed his understanding that the barring order was restricted to the premises in County Meath and that the safety order, although somewhat more extensive, was also for County Meath. Therefore, the judge did not approach the issue of whether the plaintiff’s conduct was likely to put the complainant in fear by reference to the plaintiff having been in breach of the barring order, the safety order or of an undertaking given to the Circuit Court. Rather, because the complainant had obtained a barring order and a safety order, he took the view that the plaintiff’s conduct in those circumstances was intimidatory.

31. When looked at dispassionately the transcript does not show any deliberate fabrication of evidence on the part of the defendant. There was undoubtedly some confusion as to the date of the Circuit Court hearing at which the plaintiff had given an undertaking to stay away from the complainant’s property and as to the precise scope of that undertaking.

This confusion was contributed to by the plaintiff agreeing initially with the defendant that the hearing had taken place in March 2016 and then with the Circuit Court judge that the hearing had taken place in March 2017 when in fact it took place in March 2018. Further, the defendant did not any adduce evidence of what had occurred at the Circuit Court hearings in Trim. He received instructions which he put to the plaintiff and did so expressly on the basis that this was what he was instructed. As any trial lawyer will appreciate, the putting of a question is not itself evidence but the answer to the question will be evidence. When the plaintiff disagreed with the questions put to him by the defendant in circumstances where the defendant had not adduced contrary evidence, then the only evidence before the court was that of the plaintiff’s denial. Anything which may have been suggested to him but with which he disagreed was not evidence. The Circuit judge clearly understood this and did not treat the undertaking as a proven fact upon which he acted in finding that the charges against the plaintiff had been proved.

32. The confusion regarding the date on which the undertaking was given was clearly no longer present by the time of the sentencing hearing on 22nd October, 2019. The defendant referred to the plaintiff’s earlier conviction before the District Court in Trim and expressly stated that the trespass the subject of the charges then before the court occurred while the appeal from that conviction was still pending in the Circuit Court. In other words, the defendant was not at that stage suggesting that undertakings had been given to the Circuit Court in Trim at the time of the alleged trespass but rather that the alleged trespass had occurred while that Circuit Court appeal was still pending. This was further clarified by the plaintiff himself stating that the undertaking he had given was given seven months after the alleged trespass and that he had not been in breach of the undertaking since it was given. The trial judge in his conclusions correctly notes that “whilst the matter was under appeal” the plaintiff came down to Clifden and the alleged offence was committed.

33. Of course, all of this might be regarded as irrelevant and moot in circumstances where the conviction recorded against the plaintiff in respect of these matters has been quashed. However, the plaintiff is maintaining that the defendant and the investigating guard deliberately fabricated evidence and opened his case to the court on the basis that the undertaking was referred to by the judge in finding the plaintiff guilty. This, on my reading of the transcript, is not accurate. The defendant put a line of questioning to the plaintiff expressly on the basis of his instructions and as regards a date which, although incorrect, was confirmed by the plaintiff. The trial judge did not rely on this undertaking in finding the plaintiff guilty but instead expressly found that whilst there was “some issue”

about the undertaking raised by the defendant it was “not really the heart of the issue”.

Insofar as there was an error regarding the date on the first occasion, that was clearly corrected on the second occasion not only by the plaintiff himself but also by the defendant addressing the court on the basis that the alleged offence occurred whilst the Circuit appeal was pending in Trim and, by necessary inference, not after an undertaking was given to the Circuit Court at Trim.

34. The third issue raised by the plaintiff concerned the defendant’s handling of the complainant as a witness. There are two elements to this complaint. The first concerns her victim impact evidence and accusations made by the complainant against the plaintiff in the course of that evidence which went beyond the scope of the charges of which he had then been convicted. The plaintiff’s overriding concern was to avoid a criminal conviction which could impact negatively on his prospects of obtaining an immigration visa to the USA. In his view the evidence given by the complainant had a material impact on the trial judge’s decision not to impose the Probation Act but to impose a custodial sentence which was then suspended.

35. The plaintiff complains that he did not receive a copy of the complainant’s victim impact statement before the sentencing hearing. There is no evidence before the court that the complainant actually made a formal statement in advance of the hearing and the transcript suggests that she was simply called as a witness at the hearing. At this point in the sentencing hearing the plaintiff had given evidence that although he had been unable to apply for a US visa, he had moved with his wife to Poland and the concern of the trial judge was whether the complainant would be happy with a situation where the plaintiff was no longer residing in this jurisdiction and was living abroad, albeit in Poland rather than in the United States. I do not propose to make any observation on the evidence given by the complainant which I understand to have been the subject of some of the grounds raised in the plaintiff’s judicial review. What is significant is that when the complainant asked to speak, the defendant put only one question to her namely whether the plaintiff’s stated intention to leave the jurisdiction would “deal with the matter in your point of view?”. Thereafter all of the exchanges are between the complainant and the trial judge with the defendant only responding to confirm the terms of the District Court order against which the appeal had been taken and the maximum sentence available for the offence in question. The plaintiff states that he tried to interrupt the complainant’s flow of evidence on a number of occasions but was not permitted to do so by the trial judge and he criticizes the defendant for failing to intervene. Even if the complainant’s evidence is regarded as having exceeded that which is permissible from a victim in these circumstances, it is very difficult to see from the transcript how fault can be attributed to the defendant in this regard. He asked her a single question which was not in any way improper and he certainly did not ask the complainant to address any matter other than the proposal which the plaintiff had put before the court.

36. The plaintiff also contends that the trial judge had had to reprimand the defendant during the course of the original hearing to get him to direct the witness to answer the questions. According to the plaintiff the complainant was “ranting” about things he had allegedly done which were not relevant to the alleged trespass. In the course of opening his case to the High Court the plaintiff expressly said that the defendant had been reprimanded by the trial judge twice in this regard. This is not in fact consistent with the transcript. The transcript records a single occasion where, in response to a question put by the defendant specifically relating to the events on the night of the alleged crime, the complainant referred to two other incidents and the judge intervened asking the defendant to direct the witness which he immediately did.

37. Anyone with experience of litigation will know that it can be a very difficult task to keep a witness on track especially when a witness is intimately involved with the matters about which they are giving evidence and has little or no prior experience of giving evidence before a court. It can be a particularly difficult task for lawyers acting on behalf of the prosecution in a criminal case because, if too much time is spent with a witness in advance of them giving evidence, there is a danger it will be suggested that the witness has been “coached”. Consequently, there is always a risk that a witness will say something unprompted in the witness box which is, at best, irrelevant to the case but which, at worst, may present problems for the party calling that witness. These problems may be particularly acute where, as here, there is a history of acrimony between the parties. A complainant who may feel aggrieved about many things can struggle to understand why their evidence must be limited to a single event. In this particular case, the transcript shows that in answering a perfectly legitimate question put to her by the defendant the complainant went outside the scope of the question asked, the trial judge quite properly intervened and the defendant, again quite properly, took his cue from the trial judge and immediately redirected the witness back to his original line of questioning.

38. The fourth matter referred to by the plaintiff in his opening concerned the amendment to the defence to introduce a plea of absolute as well as of qualified privilege in respect of the events which occurred during the course of his criminal trial. This application was made to the High Court on foot of an affidavit sworn by the solicitor acting on behalf of the defendant. That affidavit states at para. 3:

“I say that this case having been set down for hearing before this Honourable Court in December, 2021, senior counsel was briefed on behalf of the defendants herein in October and upon reviewing the papers filed, he noticed an error in the defence which had been filed in the case in that the form of privilege claimed was nominated as “qualified” as opposed to absolute privilege. I say and am informed by junior counsel that this was a drafting error and that it was at all times intended to assert absolute privilege as the matters complained of arose in the context of court proceedings.”

The amendment having been duly allowed, the plaintiff filed a reply to the amended defence in which he expressly contended that the affidavit grounding the motion was fraudulent in nature, that the solicitor in swearing the affidavit was well aware that there was no “drafting error” and that had there been such an error it would have been noted far earlier. The plaintiff contends that the change in the plea from qualified to absolute privilege was made in response to his securing access to the DAR for the pre-trial applications in his criminal case. He appears to contend that these transcripts prove malice on the part of the defendant which, if established, would defeat a plea of qualified privilege. No indication has been given as to how the contents of those applications would prove malice and those transcripts have not been placed before the court.

39. I find the plaintiff’s approach to this relatively straightforward amendment to a pleading to be extraordinary. It is a relatively routine matter for a senior counsel to be briefed when a case has been set down for trial. In those circumstances the senior counsel will not have settled the pleadings drafted by junior counsel before they were filed. It is also fairly commonplace for a senior counsel on reading a file in which they had no prior involvement to identify a drafting error or other omission and to advise that this be rectified before the trial proceeds. I have no doubt that this is what occurred on this occasion and there is absolutely no reason to suppose otherwise. As a matter of law there is a variety of privileges and immunities attaching to the conduct of court proceedings including but not limited to that arising under s. 17(2)(g) of the Defamation Act, 2009.

The facts originally pleaded as part of the plea of privilege at para. 30 of the defence, namely that the matters complained of arose in the course of criminal proceedings presided over by a judge exercising functions and powers of a judicial nature in accordance with Article 37 of the Constitution and all of the statements made were connected with those proceedings, is sufficient in law to ground a plea of absolute privilege. Therefore, I have no difficulty in accepting that there was a drafting error made by junior counsel in the preparation of the defence in that the privilege which it was intended to claim on the basis of the pleaded facts was mischaracterised as being only a qualified rather than also being an absolute privilege. Whilst it is unfortunate that such an error was made, it is entirely unwarranted for the plaintiff to suggest fraud on the part of the lawyers acting on behalf of the defence in seeking leave to amend the defence.

40. This reflects a tendency on the part of the plaintiff to attribute fraudulent and criminal motives to all of those who have acted against him. The allegations of fraud he makes on an entirely spurious basis against the solicitor and junior counsel in this instance are similar to the complaints of criminal conspiracy he has made against virtually all of the gardaí who gave evidence at his criminal trial (including those called to give evidence by the plaintiff himself), the complaints he has made to the LSRA and the DPP against the defendant and the multiple sets of proceedings he has now brought against the defendant, the investigating guard and apparently also against the DPP. In the course of the hearing before me the plaintiff, in his reply, indicated that all he wanted to do was to vindicate his reputation so as to facilitate his immigration prospects to the USA. He asserted that he did not wish to cause problems for anyone. This assertion rings hollow in circumstances where he has made very serious allegations against individuals who have done nothing more than come across the plaintiff in the course of their professional lives.

He has caused these individuals to become embroiled in a series of complaints and legal proceedings to which there seems to be virtually no end. The plaintiff either does not appreciate the extent to which the mere fact of complaints of this nature causes damage to the professional reputation of those involved or he simply does not care. Certainly, the plaintiff has shown no respect for the reputations of those he seeks to vilify in his attempt to vindicate his own reputation.

41. Although the plaintiff indicated that he was making four points to the court, he also addressed the issues noted above as to whether the DPP should have proceeded with an investigation into his complaint and whether the DPP was somehow acting inappropriately in supporting the defendant in his response to the plaintiff’s complaint against him to the LSRA. As the DPP is not a party to these proceedings I do not propose to consider these allegations further.

The Defendant’s Application

42. On the conclusion of the plaintiff’s opening, counsel for the defendant made an application that the proceedings be struck out on the basis that the issues raised were all nonjusticiable or that they were subject to absolute privilege. Some of the strands of the defendant’s arguments have been considered in looking at the evidence in the earlier sections of this judgment. There was a slight merging of these issues with the separate question of whether the plaintiff’s case was bound to fail which entails some consideration of whether the evidence supports the pleaded case. I agree that the transcript of the plaintiff’s application for the DAR recordings does not suggest that there was anything improper in the objection taken by the defendant which, as it happens, was refused by the judge although the grounds upon which the objection was made were accepted.

Similarly, in terms of the conduct of the criminal appeal, the transcript does not show that there was anything improper in the line of cross examination adopted by the defendant on the basis of his instructions from the investigating guard nor in the manner in which the defendant questioned the complainant either on that occasion or the subsequent sentencing hearing.

43. Counsel for the defence points out that the statement of claim does not raise any issue in respect of the victim impact statement and this is correct as a matter of fact. The court was advised that the victim impact evidence was the prime focus of the plaintiff’s judicial review which, as previously noted, was conceded by the Director of Public Prosecutions. I accept without hesitation the plaintiff’s assertion that as an accused person he was entitled to a fair trial. However, errors can and do occur in the conduct of criminal proceedings. The State provides mechanisms through which such errors can be corrected either by way of appeal or by way of judicial review. In this instance the plaintiff, as he was entitled to, sought judicial review of his conviction and sentence and was successful in doing so. The fact that he was successful in this regard does not make the lawyers acting on behalf of the prosecution personally liable to the plaintiff in any way nor does the fact that errors occurred mean that those lawyers were legally or morally culpable in any way. In short, in circumstances where errors occurred there was a remedy available to the plaintiff of which he availed. The proceedings now before the court seek to relitigate in a civil context matters which have already been properly dealt with by way of judicial review of the criminal proceedings. It is singularly inappropriate that the plaintiff continue to pursue these matters against the defendant in the manner in which he now seeks to do.

44. Similarly, counsel points out that the statement of claim does not include any allegations concerning the need for the trial judge to intervene to request the defendant to direct the complainant to answer the questions which he had been asked. I accept that this is so, but I have nonetheless considered the issue on the basis that if this gave rise to a legitimate cause of action and could be cured by an amendment to the pleadings then the proceedings should not be struck out. Having considered the matter I accept counsel for the defence’s characterisation of this as a relatively common place type of intervention on the part of a trial judge which does not indicate any malice or an intention on the part of the defendant to deprive the plaintiff of a fair trial. As I have already indicated, the plaintiff’s allegations are exaggerated as the transcript records a single occasion on which the trial judge intervened in this manner, an intervention which was properly taken on board by the defendant such that the need for it did not arise again.

45. Insofar as the proceedings concern matters which are also the subject of the plaintiff’s complaints about the defendant to the LSRA or the defendant’s response to that complaint, counsel correctly points out that this complaint is still live before the LSRA and that all relevant issues will, in due course, be determined by that body. This includes DPP’s submission that a complaint by the accused in a criminal trial against the prosecution lawyers should not be regarded as an admissible basis for a complaint.

Further, counsel points to a line of case law culminating in the decision of the Court of Appeal (Hogan J.) in ACC Bank v Anthony Barry [2015] 3 IR 473 to the effect that where the determination of certain legal rights and liabilities is assigned by law to another administrative body, such matters fall outside the full original jurisdiction of the High Court. One of the effects of the Legal Services Regulation Act, 2015 having vested jurisdiction in the LSRA in respect of allegations professional misconduct on the part of solicitors and barristers is that the High Court does not have concurrent jurisdiction to decide these matters at first instance. In light of the fact that the Oireachtas has conferred jurisdiction over the professional misconduct of lawyers on the LSRA, the full, original jurisdiction of the High Court in connection with these matters is now exercisable only through judicial review of the decisions of the LSRA. Thus, not only the substantive matters the subject of this complaint but also all issues concerning the handling of this complaint are not justiciable in the context of these proceedings

46. I also accept the defendant’s argument that the actions of solicitors and barristers in connection with legal proceedings are covered by an absolute privilege. There is a strong public policy basis for this privilege without which it would not be possible for lawyers to give full and frank advice to their client nor to take appropriate action on their client’s behalf without risk of being sued by the opposing party. The administration of justice depends on litigants being able to secure the services of lawyers to prosecute and defend claims on their behalf. It is inherent in the nature of an adversarial legal system that claims or defences advanced on behalf of a client will frequently be unsuccessful. The legal system simply could not operate if, in such cases, the lawyers who had acted on behalf of the unsuccessful party became personally liable to the successful party. Only the very wealthiest of litigants could afford to indemnify lawyers against all potential claims that could be taken against them by the parties they face on the opposite side of a court room. This would be contrary to public policy and inimical to securing the citizen’s right of access to the courts which is guaranteed both by our constitution and by the European Convention on Human Rights.

Jurisdiction to Strike Out Proceedings

47. The High Court has jurisdiction to strike out proceedings under either O.19 r.28 of the Rules of the Superior Court or its pursuant to its inherent jurisdiction. Although these jurisdictions are very similar with a considerable degree of overlap, they are nonetheless different in many respects. The jurisdiction under O.19 r.28 arises when, on their face, the pleadings in a case do not disclose a reasonable cause of action or are otherwise frivolous or vexatious. Frivolous or vexatious in this context means that the proceedings have no reasonable chance of succeeding in the sense that the complaint is futile, misconceived or hopeless. In assessing whether pleadings should be struck out under O.19 r.28 the court must take the facts asserted in the pleadings at their height and assume that these can be made out in evidence by the party asserting them. In contrast, when exercising its inherent jurisdiction to strike out proceedings on the basis that they are bound to fail in cases where the facts as pleaded do disclose a reasonable cause of action, the court may assess the evidence and the facts in order to ascertain whether the proceedings are nonetheless bound to fail. Thus, the difference between the two is that an application made under the rules must assume the facts as pleaded and assess whether legally they are capable of giving rise to a cause of action whereas an application pursuant to the court’s inherent jurisdiction can look at the evidence upon which the pleaded facts are based in order to assess whether that evidence is capable of supporting the pleaded case. Either jurisdiction is to be exercised sparingly as the effect of striking out proceedings will be to deprive the intending litigant of what would otherwise be a constitutional right of access to the courts. Notwithstanding this, an order can be made in appropriate circumstances because it would be an abuse of the court’s process to permit litigation to proceed in circumstances where it has no prospect of success and it would be unfair to the defendant to require them to defend it.

48. Although counsel opened an academic text and case law concerning the jurisdiction under both O.19 r.28 and the court’s inherent jurisdiction, I did have some concern as to whether the court can properly be asked to exercise its jurisdiction under O.19 r.28 at the trial of the action. The words of the rule suggest that it is the pleading which is to be struck out, which in turn may lead to the action being dismissed. The inference is clearly that the rule can only operate to result in the dismissal of proceedings where it is clear from the pleadings that the action is incapable of being sustained. This in turn suggests that the appropriate time for making such an application is before the matter comes on for trial because the purpose of a plenary trial is to afford the parties the opportunity to adduce to the court evidence relevant to the issues in the proceedings. However, despite my misgivings in this regard, in circumstances where the defendant is relying on both aspects of the court’s jurisdiction and where, for reasons already explained in relation to the evidence and in relation to the various strands of the argument made on behalf of the defence, I am satisfied that these proceedings are bound to fail I am prepared to accede to the defendant’s argument and to strike out the plaintiff’s proceedings.

49. There is one further aspect of this case which I might mention. In the course of making his argument, counsel for the defence referred to the decision of Barrett J. in Dunnes Stores v. An Bord Pleanála [2016] IEHC 263 and in particular the passages in that judgment which indicate that where proceedings are brought for an improper purpose they can be struck out as an abuse of process. At this point I intervened to point out that there was no evidence before the court that the proceedings had been brought for an improper purpose and that the defendant could not by simply raising this argument impose upon the plaintiff an evidentiary obligation to prove the bona fides of the proceedings. There matters might have rested save that the plaintiff intervened to confirm that his purpose in bringing the proceedings was to obtain some class of a judgment or order from the court which would facilitate his US visa application. This in turn was relied on by counsel for the defendant as an improper or collateral purpose which would justify the dismissal of the proceedings as an abuse of process.

50. Obviously, the plaintiff’s intervention in this regard was singularly unhelpful to his own case in circumstances where the court was attempting to close down a line of argument on which the defendant had not adduced any evidence. Nonetheless, the plaintiff effectively confirmed that he had brought these proceedings – and in doing so had made a series of very serious and wide ranging allegations against the defendant and others – for a purpose which is ostensibly not the purpose for which the proceedings had been instituted. Fortunately, I do not have to decide whether I should dismiss the proceedings on this ground alone since there is already ample grounds upon which the proceedings can be struck out as an abuse of process and as fundamentally misconceived without taking this particular factor into account.

51. Finally, I might note my extreme concerned at a statement made by the plaintiff in the course of his argument. In addition to seeking a copy of the victim impact statement to be made by the complainant in advance of the sentencing hearing, the plaintiff confirmed that he had been in touch with the defendant in advance of the trial in order to ensure that the defendant would adopt an approach towards the examination of the complainant which was in line with the plaintiff’s perception of what was required by a fair trial. Given that the criminal charges against the defendant arose in circumstances where the complainant had already secured a barring order and a safety order against him and where he had previously been convicted of a breach of those orders which resulted in him spending some time in prison (although the Probation Act was subsequently applied on appeal), it is profoundly worrying that the plaintiff would think it appropriate to attempt to direct the state solicitor as to how his former partner should be treated as a witness against him in a trial before the criminal courts.

52. It is of course axiomatic that the plaintiff was entitled to a fair trial and that any prosecution must be conducted in a fair and unbiased manner. Nonetheless, the assumption by the plaintiff that he should be entitled to direct the prosecution’s handling of the complainant where the courts have already had to intervene to protect the complainant from the plaintiff, is very worrying. It is evident that the plaintiff’s focus is exclusively self-centred and he is incapable of understanding that the defendant, in discharging his duties as solicitor for the prosecution also owed duties to the complainant, to the public and indeed to the court which could not be fulfilled were he to adopt an approach towards the key prosecution witness that was directed by the accused.

Conclusion

53. I am satisfied that the case pleaded by the plaintiff does not disclose a reasonable or a justiciable cause of action. The purported action is non-justiciable both because the complaints are not ones which give rise to any recognised cause of action and because they seek to have the High Court make findings of professional misconduct against a solicitor, which findings, if they were to be made, could only be made by the Legal Services Regulatory Authority. I am also satisfied that the case the plaintiff seeks to make it is in any event bound to fail since the matters to which it relates concern the conduct by a lawyer of legal proceedings before a court and are consequently privileged.

As it happens the factual basis of the claims the plaintiff seeks to make are not borne out by the transcript of the events he describes. However, in circumstances where I have already found the claim to be non-justiciable and to be the subject of an absolute privilege, I do not think that it is necessary for me to also consider the extent to which this type of factual analysis of the transcript is appropriate to ground the exercise of the court’s inherent jurisdiction. I will strike out the plaintiff’s proceedings in full.