Court of Appeal dismisses appeal regarding refusal to amend a procedural cross notice of motion.

THE COURT OF APPEAL

APPROVED

NO REDACTION NEEDED

Court of Appeal Record Number: 2025/19

High Court Record Number: 2023 3335P

Neutral Citation Number [2025] IECA 137

Costello P. Meenan J. O’Moore J.

BETWEEN/

JOHN HARRINGTON

PLAINTIFF/APPELLANT

-AND-

SRF LIMITED, RICHARD JAMES FITZPATRICK, AHYETT ROSAPA,

JOHN J.QUINN, CONOR QUINN, PAULINE BRADY, OLIVER BRADY,

JOHN J. QUINN & COMPANY SOLICITORS LLP

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 3rd day of July, 2025.

1. For generations, the established way of making applications to a court has been by way of motion on notice. The New Shorter Oxford Dictionary (1993 Edition) defines “motion” in its legal context as “A formal application made to a court for a ruling or order…” Significantly, the first use of this word in that way is noted by the OED as being recorded in the late Middle English period (between 1350 and 1469). In other words, applications to court described as motions have been made by litigants for over 500 years. What did not feature, for almost all of that period, was that persons meeting a motion felt obliged to issue their own “cross notice of motion” with the sole purpose of asking the court to refuse the original motion. However, in the current appeal, the issues between the parties ultimately reduced to one: whether the High Court judge was mistaken in refusing to amend the appellant’s “cross notice of motion” to reflect amendments to the original notice of motion brought by the respondents. This dispute is a surreal one. The issuing of a “cross notice of motion” is utterly unnecessary at best and a deliberate and senseless multiplication of paperwork at worst. It serves no useful purpose. When asked, at the hearing of this appeal, what advantage the “cross notice of motion” provided to him, the appellant replied that if he did not bring any such motion a point would be taken against him by the other side. It need hardly be said that, if any such point was taken, it would be dismissed out of hand. While this appeal could be disposed of equally abruptly, it is preferable to set out fully how this very peculiar appeal came about.

2. By plenary summons dated 7th July 2023, the plaintiff/appellant, Mr. Harrington, claims damages and other reliefs against a range of defendants. He claims against the first and second defendant on the grounds that they sold him an “umbilical system” for the sum of £49,224.00 sterling which was not fit for purpose (para. 10 of the general endorsement claim). He claims that the third defendant “did fraudulently manufacture an invoice and emailed it to one of the plaintiff’s companies alleging money that was owing and due to which the said company had no contract with the defendants, nor did said company pay for any part of the above umbilical system, thus thereafter causing further damages to the plaintiff…”; para 23 of the general endorsement of claim. The claims against the fourth, fifth, sixth, seventh and eighth defendants (who are the respondents to this appeal) arise from a range of complaints on the part of Mr. Harrington including: -

(a) The making of false allegations against Mr. Harrington (para. 29 of the general endorsement claim);

(b) Failure to observe a duty of care to Mr. Harrington (paras. 30, 31 and 32 of the general endorsement claim);

(c) Abusing “due process and principles of natural justice in their dealings against the Plaintiff and his company…” (para. 33 of the general endorsement claim);

(d) Instigating legal proceedings against Mr. Harrington’s company and obtaining a court order against it “without a cause of action, with no contract…” (paras. 34 and 35 of the general endorsement claim);

(e) That these defendants “did threaten and assault and intimidate the Plaintiff and his company…”, defamed and slandered the Plaintiff and his company, acted in bad faith, and threatened to put the Plaintiff’s company in liquidation (paras. 36 -39 inclusive of the general endorsement claim).

3. The statement of claim was not delivered within the time stipulated by the Rules of the Superior Courts. Accordingly, by motion dated 12th June 2024, the solicitors for the respondent defendants (“the John J. Quinn interests”) issued a motion pursuant to O. 27, r.1 of the Rules dismissing the claim for want of prosecution and in particular for failure to deliver a statement of claim within the prescribed time. This motion was returnable on 15th July 2024. On 17th December 2024, Mr. Harrington issued a “cross notice of motion” returnable to 20th January 2025. In that, he sought an order striking out a motion brought by the first, second and third defendants. The “cross notice of motion” also sought an order striking out the motion brought by the John J. Quinn interests (which I have described earlier in this judgment). Finally, the “cross notice of motion” sought (at para. 3) the following:- “An Order for the Plaintiff to continue with his proceedings to execute his summons in line with the normal course of due process”

4. The day after this motion was issued, on 18th December 2024, came the hearing before the High Court (Cregan J.) which has given rise to this appeal. At that hearing, the High Court judge was informed that a statement of claim had been delivered by Mr. Harrington and that therefore the motion brought by the John J. Quinn interests could not proceed in its original form. However, counsel for the John J. Quinn interests informed the High Court that her instructions were to seek to amend the original notice of motion in order to claim relief striking out the proceedings on the grounds that that they disclosed no sustainable cause of action, were an abuse of process and were bound to fail. In making this application, counsel relied upon the fact that the grounding affidavit for the original motion (sworn by Shane McSweeney, solicitor for the John J. Quinn interests) had stated (at para. 11) that:

“Whilst the within application is brought by the 4th – 8th named defendants primarily on the basis that there has been a failure to prosecute this claim, insofar as the plaintiff has failed and refused to deliver a statement of claim despite requests, I say and believe that the present claim, at least insofar it is made out against the 4th - 8th named defendants discloses no sustainable cause of action, is bound to fail and/or is frivolous, vexatious and abuse of process inter alia.”

5. The affidavit went on (at para. 12):-

“In particular, I say and believe that the 4th – 8th named defendants do not owe any duty of care to the plaintiff, either as alleged or at all and that as solicitors representing the first named defendant (successfully) in debt recovery litigation as against an entirely separate legal entity (Autotech Harringtons & Sons Ltd), they owed a duty of care to their client only in respect of the conduct of that litigation. Moreover, if (which is denied) there was any cause of actions against any of the defendants arising from the securing of a default judgment against Autotech Harringtons & Sons Ltd, it clearly vested in that company and not in the Plaintiff in a personal capacity.”

6. Mr. Harrington opposed this application to amend the original motion brought by the John J. Quinn interests, and did so on the basis that he wanted his “cross notice of motion” to be heard on 20th January 2025 in advance of any motion brought by these respondents. He said he would be prejudiced as “my motion falls if my procedure is struck out”; (line 33 of p.4 of the transcript of the hearing).

7. The trial judge had no time for this argument. In this regard he was entirely correct. Firstly, as I have noted at the start of this judgment, Mr. Harrington’s “cross notice of motion” was entirely otiose. Bringing a motion to strike out another motion is pointless. The first motion either succeeds or fails. That is true whether that first motion is amended or not. If the first motion succeeds, it would have done so regardless of the issuing of the second motion seeking to strike it out. If the first motion fails, there is no need to bring a separate application seeking its failure.

8. Mr. Harrington then asked for liberty “to amend my motion to have their motion struck out …”; (line 8 and 9 of p.5 of the Transcript). Again, that was refused by the Judge as no coherent reason for amending his motion was suggested by Mr. Harrington, and the details of any such amendment were not shared with the court. The trial judge proceeded to permit the John J. Quinn interests to amend their motion “to include relief to strike out proceedings”, told Mr. Harrington that he would have “whatever time you require to put in a replying affidavit…” and fixed the 13th January for that to be done. Mr. Harrington agreed with that time limit. The trial judge then, quite understandably, came to the view that the matter was not suitable for a Monday list and therefore gave directions about any replying affidavits which the defendants to the proceedings wished to deliver in response to Mr. Harrington’s affidavits, directions as to legal submissions, and put the amended motion in for mention only on 26th February. The trial judge stated that if the motion was ready for hearing at that stage, it would be given a date.

9. While it does not form part of the order made by the High Court judge, it should be noted that—notwithstanding a statement that he had served all the defendants with documents the previous day—Mr Harrington proceeded to give counsel for the John J. Quinn interests “a copy of the booklet in the court so she’d have it this morning”. That does not constitute proper service but (as already stated) the trial judge’s observation to that effect does not form part of the order under appeal.

10. The order of the trial judge was perfected on 6th January 2025. As already noted, the relevant part of the order permitted the John J. Quinn interests to amend their original motion so that it sought a striking out of the proceedings.

11. Mr. Harrington appeals this order. The grounds of appeal are both repetitive and unfocused. For example, it is alleged that there was “bias and prejudice” on the part of the trial judge in that he did not give “considerable weight nor regard on the day … to the plaintiff’s cross notice of motion and affidavit…”. In fact, the trial judge gave entirely apposite regard to the fact that a completely unnecessary motion had been brought by Mr. Harrington. The existence of that motion provides no reason to refuse the application to amend made on behalf of the John J. Quinn interests. Far from displaying either prejudice or bias on the part of the trial judge, the approach that he took towards the amendment of the original John J. Quinn motion illustrated an incisive and effective handling of the applications before him. To require the John J. Quinn interests to issue a fresh motion seeking a strike out of the proceedings on the grounds already flagged in Mr. McSweeney’s affidavit would have simply added to the costs of the proceedings to no appreciable purpose whatsoever.

12. I have considered each of the separate grounds of appeal set out by Mr. Harrington in the notice of appeal. None of them even go close to providing a reason to upset the order of the trial judge. The repeated statements that Mr. Harrington was denied “fair procedure (sic), due process and the basic principles of natural justice…” are completely unsupported by what actually happened in court, which I have set out in some detail earlier in this judgment. The contention at ground of appeal (6), that the amendment of the John J. Quinn interests notice of motion “would render moot the plaintiff’s notice of motion that was properly before the court…”, would only have any basis in the event that the amended notice of motion succeeded on its merits. Allowing such a motion to be brought does not, as Mr. Harrington suggests, amount to “ abuse of process, abuse of proceedings, abuse of privileges and abuse of power…”; none of these abuses arise from simply giving defendants the opportunity to vary the basis upon which they can argue that these proceedings are to be dismissed.

13. It is correct that no notice of motion was brought to amend the original notice of motion issued on behalf of the John J. Quinn interests, as asserted in ground of appeal (7). That is not in itself a fatal objection to the making of the order amending the original notice of motion. It is somewhat unreal to submit that an eminently sensible amendment to the original notice of motion (to take into account events that had occurred after that motion was issued) is to be set aside simply because a further notice of motion was not issued in order to translate the original notice of motion into a different version of itself. In any event, it does not appear from the transcript that this was an objection raised at the time by Mr. Harrington.

14. The complaint at ground of appeal (8) that the trial judge “did not give considerable weight or regard …” to the fact that the statement of claim had been delivered again has no basis in fact. The whole reason for the amendment to the original notice of motion was that the statement of claim had been delivered, and that was made clear to the trial judge. While ground of appeal (10) relates again to the absence of paperwork for the purpose of amending the original notice of motion, the 9th and 11th are framed in a fresh way. They read: - “(9) The trial judge did not give considerable weight nor regard on the day of the Court hearing and making the Order of ‘Wednesday the 18th day of December 2024’ which has no legal standing, is unsafe and a nullity in law.”

15. This ground of appeal is so vague as to be meaningless.

16. Ground of Appeal (11) reads:-

“The trial judge erred in fact and in Law, ‘law’ where he made the order of ‘Wednesday 28th day of December, 2024,’ of three orders within the Order therefore accepting and knowing that there was something wrong with the Defendants’ previous Notice of Motion therein, and the Court asking Counsel to hand back the Plaintiff’s Notice of Motion and affidavit, and went on to make an Order to amend the said previous Notice of Motion for the said Defendants after de facto, while at the same time refusing the Plaintiff to amend his Notice of Motion to test the Defendants, thus prejudicing the Plaintiff.”

17. It would appear that this ground of appeal relates to the trial judge’s view that papers should not be served on counsel in court, and that counsel was to hand back the papers so that proper service could be achieved. Again, this is an unstateable ground of appeal, which has no connection with the substance of the order made by the trial judge on the day.

18. No relevant legal principles are set out in a coherent fashion by Mr. Harrington in the section of the notice of appeal that requires him to do so. He does refer to constitutional provisions relating to equality, the personal rights of the citizen, and the vindication of the life, personal rights, good name, and property rights of every citizen. However, none of these are violated by the order made by the trial judge and neither in the notice of appeal nor in a document headed “Legal Submissions and Submission” is any meaningful account provided as to how Mr. Harrington claims he is entitled to rely upon these provisions of Bunreacht na hÉireann.

19. Finally, in the notice of appeal there is reference to the European Convention on Human Rights. This was not elaborated upon either in the written or oral submissions advanced by Mr. Harrington in this appeal in any relevant way, and no reason was given as to why the provisions of the Convention provide an arguable basis for the setting aside of the order made by the trial judge.

20. On this analysis alone, the appeal would fail. It is not necessary to refer to the authorities to which counsel for the John J. Quinn interests alludes in his written submission. It is sufficient to say that the principles set out by Birmingham J. (as he was at the time) in Rossmore Properties Limited v ESB [2014] IEHC 159 have stood the test of time. These are: - “i. The parties enjoy complete freedom of pleading. This is a reference to the fact that in the ordinary course of events a plaintiff is at large as to how he or she pleads his or her case. Absent pleas that are scandalous or vexatious or the like, the plaintiff cannot be dictated as to how to formulate and present his or her claim. ii. Order 28 of the Rules of the Superior Courts which is the rule that deals with amendments is intended to be applied liberally. iii. Amendments shall be made for the purposes of determining the real questions in controversy between the parties. iv. Amendments should not be permitted when doing so could cause real or actual prejudice to other parties. v. Amendments should be allowed if all that is present is litigation prejudice which is capable of being dealt with by orders for costs or other directions by way of case management. vi. There is no rule that per se precludes radical amendments. vii. There is no rule against introduction of a new cause of action if it falls within the ambit of the original grievance.”

21. Given the delivery of the statement of claim, the real issue between the parties on the motion brought by the John J. Quinn interests had become whether or not these proceedings should be struck out as against those defendants. The amendment permitted by the trial judge was a sensible and apposite one. There was no prejudice caused to Mr. Harrington as a result of the amendment made by the trial judge. On the contrary, as already observed the amendment allowed the original motion to be recast in a way that permitted the true dispute between the parties to be decided in the context of that motion alone, rather than in the context of a separate motion to be brought at some later time, necessarily involving further cost and effort on the part of both Mr. Harrington and the John J. Quinn & Co interests.

22. At the hearing of the appeal, as I have noted, the position taken by Mr. Harrington (after some gentle probing by the court) was that he was no longer challenging the trial judge’s decision to permit the amendment of the original motion brought by the John J. Quinn interests. However, he continued to challenge the trial judge’s refusal to allow Mr. Harrington’s “cross notice of motion” to be amended. In support of this argument. Mr. Harrington claimed that the trial judge had, at a hearing on the day of February 2025, recognised his error and had indicated that he would allow amendment of the “cross notice of motion”. However, no such amendment occurred at that time as Mr. Harrington steadfastly refused to renew his application for such amendment as he had already invested €250 in lodging the appeal against the orders made on foot of the original hearing in December 2024, and had incurred travel costs in doing so. In response to this revised position on the part of Mr. Harrington, counsel for the John J. Quinn interests did not strongly resist the amendment of the “cross notice of motion”.

23. Three things should be said about the stance of the parties, as described in the preceding paragraphs. Firstly, the change of heart on the part of the trial judge does not mean that his original decision should be overturned. For the reasons which I have set out at some length, the appeal against the original orders of the trial judge must fail. Secondly, it does not seem to me that the trial judge in fact stated that his original decision was in any way incorrect. Instead, he appears to have been trying to find a practical and mutually acceptable solution to a procedural impasse. Having said that, I would not agree that the amendment of the “cross notice of motion” would have been appropriate. To have done so would have endorsed the concept of a type of motion which should not be encouraged. Thirdly, and to similar effect, even if the parties had agreed that the “cross notice of motion” should now be amended on appeal, the court is entitled to withhold any implicit approval of a device which simply adds to procedural complexity and expense without any logical purpose.

24. For these reasons, I would dismiss the appeal.

25. Costello P. and Meenan J. have authorised me to say that, not only do they agree with this judgment, but they also join with me in emphasising that cross notices of motion such as the one in the present case should be actively discouraged.

26. As the appeal has failed in its entirety, our provisional view is that the respondents to the appeal should be awarded the costs of the appeal. If any party wishes to argue for any different order, they should notify the Court of Appeal Office to that effect by 5 pm on the 16th of July 2025. In the event of any such notification, appropriate directions will be given.