Supreme Court allows appeal dismissing claim as bound to fail due to case complexity requiring full trial.

THE SUPREME COURT

[Appeal No: 2011/236]

Clarke J.

Dunne J.

O’Malley J.

Between/

Moylist Construction Limited

Plaintiff/Appellant

and

Thomas Doheny, Deloitte & Touche, Ulster Bank Limited

and Tom O’Carroll

Defendants/Respondents

Judgment of Mr. Justice Clarke delivered the 4th March, 2016.

1. Introduction

1.1 One of the most difficult tasks with which courts can be faced involves proceedings where both sides are entirely innocent of

wrongdoing but where, as a result of the decision of the Court, it will be inevitable that one or other side will suffer loss. Such

proceedings have sometimes been described as ones involving “the problem of the two innocents”. The underlying proceedings which

are the subject of this appeal come within that category. The plaintiff/appellant (“Moylist”) was involved as the contractor in a

building contract involving 18 holiday homes known as the Greens at Ballybunion in Co. Kerry. The developer was the fourth named

defendant (who is not involved in this appeal) (“Mr. O’Carroll”). Much of the funding for the purchase of the lands on which the

development was to take place and the construction of the holiday homes concerned came from the third named

defendant/respondent (“Ulster Bank”).

1.2 The development occurred at what turned out to be an unfortunate time having regard to the collapse of the Celtic Tiger

economy and the great recession which followed. There is no doubt but that Mr. O’Carroll owes a significant sum of money to Moylist

for building works which were carried out but which were not paid for. Likewise, there is no doubt but that Mr. O’Carroll owes an even

greater sum of money to Ulster Bank arising from borrowings to finance the project. It appears highly improbable that Mr. O’Carroll will

ever be in a position to repay those monies. The principal asset which appeared to be available to pay either Moylist or Ulster Bank

was the almost completed development. In those circumstances, it is, perhaps, hardly surprising if unfortunate that litigation ensued

between Moylist and Ulster Bank which had at its core issues which could affect the question of who might be able to benefit from

the sale of the almost completed development.

1.3 Ulster Bank had the benefit of a mortgage in the form of a charge created on the 21st June, 2006, which was entered into by Mr.

O’Carroll over the lands in question (which were registered lands comprised in Folio 3855F Co. Kerry). For some reason as yet

unexplained, the charge was not registered as a burden on that folio until the 27th February, 2008. Ulster Bank appointed the first

named defendant/respondent (“the Receiver”) as receiver under its powers arising from the mortgage. In passing, it should be noted

that the Receiver is a member of the second named defendant firm although, for reasons which will shortly be explained, that firm is

not a party to this appeal.

1.4 Moylist commenced these proceedings, in which they claim that the Receiver and Ulster Bank have wrongly dispossessed Moylist

of its entitlement to occupy the premises on foot of the building contract which was put in place between Mr. O’Carroll and Moylist.

Moylist sought an interlocutory injunction to restrain any interference with its occupation of the lands. In response, the Receiver and

Deloitte & Touche and (in a separate motion) Ulster Bank brought respective applications seeking to have the proceedings dismissed

as being bound to fail. Both matters were heard by Laffoy J. in the High Court who gave judgment on the 21st April, 2010, (Moylist

Construction Ltd -v- Doheny & ors [2010] I.E.H.C. 162). For the reasons set out in that judgment, Laffoy J. declined to grant Moylist

the injunction sought but acceded to the applications to dismiss the proceedings as being bound to fail. It is against part of those

orders that Moylist has now appealed to this Court.

2. The Appeal

2.1 It should first be recorded that Moylist has not sought to appeal the refusal of the interlocutory injunction. Second, it should be

recorded that Moylist has not sought to appeal the dismissal of the proceedings as against Deloitte & Touche. Thus, the orders of the

High Court which are the subject of this appeal are the orders dismissing the proceedings against, respectively, the Receiver and

Ulster Bank on the basis of the finding of the trial judge that the proceedings are bound to fail.

2.2 For reasons which I hope will become apparent, it seems to me to be appropriate to commence the substantive part of this

judgment by looking closely at the proper application of the undoubted jurisdiction of the Court to dismiss proceedings as being bound

to fail.

3. The “Bound to Fail” Jurisdiction

3.1 At least since the decision of Costello J. in Barry v. Buckley [1981] I.R. 306, it has been clear that the courts have an inherent

jurisdiction to strike out proceedings as being bound to fail, which jurisdiction is in addition to the somewhat separate entitlement of a

court to strike out proceedings under O.19, r.28 of the Rules of the Superior Courts. The distinction between the two forms of

jurisdiction is analysed in Salthill Properties Ltd. & anor v. Royal Bank of Scotland plc & ors [2009] I.E.H.C. 207, which was approved

by this Court in Lopes v. Minister for Justice, Equality & Law Reform [2014] I.E.S.C. 21. An application under the rules is based on a

contention that the case as pleaded does not disclose a cause of action. The inherent jurisdiction under Barry v. Buckley extends to

cases where it can be shown that there is no arguable basis in law and in fact for the claim made. That the facts, and in particular an

analysis of documents, can be addressed at least to some extent in the context of such an application is clear form the judgment of

this Court in Keohane v. Hynes [2014] I.E.S.C. 66.

3.2 Having reviewed relevant authority in Keohane, I set out the following conclusions:-

“6.5 It is important, for the avoidance of any doubt, that the overall principle be clearly stated. As pointed out in many

of the authorities, not least in the judgment of Murray J. in Jodifern, the underlying basis of the jurisdiction to dismiss as

being bound to fail stems from the court's inherent entitlement to prevent an abuse of process. Bringing a case which is

bound to fail is an abuse of process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to

prevent that abuse of process by dismissing the proceedings. However, as again noted by Murray J. in Jodifern,

whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss as

being bound to fail is not a means for inviting the court to resolve issues on a summary basis.

6.6 It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted

when it is clear that the proceedings are bound to fail rather than where the plaintiff's case is very weak or where it is sought to

have an early determination on some point of fact or law. It is against that background that the extent of the court's entitlement to

look at the facts needs to be judged.”

3.3 As to the extent to which it is appropriate to engage with the facts, I continued by noting the following:-

“6.8 What the Court can analyse is whether a plaintiff's factual allegation amounts to no more than a mere assertion, for

which no evidence or no credible basis for believing that there could be any evidence, is put forward. Likewise, the Court

can go into documentary facts where the relevant documents govern the legal relations between the parties or form

the only possible evidential basis for the plaintiff's claim (as in Lopes). As Barron J. noted in Jodifern, a court can look at

a contract and it may become clear beyond argument as to what that contract means. On that basis, it may follow

that a plaintiff's claim may be bound to fail. But there may be cases where, notwithstanding the text of a contract,

facts are asserted and backed up either by evidence or by the possibility that evidence might be found, which might

lead to the contract being construed in some different way or the consequences for the wrong alleged in the

proceedings being differently considered. In such cases, as Barron J. made clear, the case must go to trial.

6.9 In summary, it is important to emphasise the significant limitations on the extent to which a court can engage with

the facts in an application to dismiss on the grounds of being bound to fail. In cases where the legal rights and

obligations of the parties are governed by documents, then the court can examine those documents to consider

whether the plaintiff's claim is bound to fail and may, in that regard, have to ask the question as to whether there is any

evidence outside of that documentary record which could realistically have a bearing on the rights and obligations

concerned. Second, where the only evidence which could be put forward concerning essential factual allegations made

on behalf of the plaintiff is documentary evidence, then the court can examine that evidence to see if there is any basis

on which it could provide support for a plaintiff's allegations. Third, and finally, a court may examine an allegation to

determine whether it is a mere assertion and, if so, to consider whether any credible basis has been put forward for

suggesting that evidence might be available at trial to substantiate it. While there may be other unusual circumstances

in which it would be appropriate for the court to engage with the facts, it does not seem to me that the proper

determination of an application to dismiss as being bound to fail can, ordinarily, go beyond the limited form of factual

analysis to which I have referred.”

3.4 One might have hoped that it would not have proved necessary to revisit the general principles which underlie the inherent

jurisdiction to strike out so soon after Keohane. However, the circumstances of this case do, in my view, make it necessary to add to

the general analysis to be found in Keohane.

3.5 I should start by saying that I do not consider it necessary to depart in any way from, or to refine the views expressed in

Keohane. As noted in the passages already cited, an application to dismiss under the inherent jurisdiction is not some form of

surrogate summary disposal procedure. While the court can engage with the facts (and in particular documentary facts) there are

what I described in Keohane as “significant limitations” to the extent to which such an engagement is appropriate.

3.6 However, in addition, it seems to me that the comments made in Keohane in reality stem from a more fundamental principle. The

default position in respect of any proceedings is that they should go to trial. Depriving the parties of a full trial in whatever form is

appropriate to the proceedings concerned is a departure from the norm, and one which should only be engaged in when it is clear that

there is no real risk of injustice in adopting that course of action.

3.7 I would not wish to indicate that the criteria by reference to which the courts consider whether to adjourn proceedings

commenced by summary summons to plenary hearing (and thus give the defendant leave to defend) are necessarily exactly the same

as those which apply in an application to dismiss under the inherent jurisdiction. However, there are broad similarities which make it

useful to refer to the ‘leave to defend’ jurisprudence, at least by analogy.

3.8 In McGrath v. O’Driscoll [2007] I.L.R.M. 203, I said the following at p.210:-

“So far as questions of law or construction are concerned the court can, on a motion for summary judgment,

resolve such questions (including, where appropriate, questions of the construction of documents), but should only

do so where the issues which arise are relatively straightforward and where there is no real risk of an injustice

being done by determining those questions within the somewhat limited framework of a motion for summary

judgment.”

3.9 That passage was expressly approved of in this Court in the judgment of Denham J. in Danske Bank v. Durkan New Homes [2010]

I.E.S.C. 22 (see para. 16).

3.10 There is at least a partial analogy between the position of a defendant faced with an application for summary judgment in

summary summons proceedings and a plaintiff faced with an application to dismiss under the inherent jurisdiction. In both cases, the

suggestion is that the relevant party should not get a full plenary hearing. In both cases, the reason why it is suggested that there

should not be a full plenary hearing is based on a contention that there would be no point because there is either no defence (in the

case of a defendant in summary summons proceedings) or no claim (in the case of a plaintiff faced with an inherent jurisdiction

application) which would justify imposing the burden and expense of a full plenary hearing on the opponent in question.

3.11 However, it is clear from McGrath that, while the Court has an entitlement in a summary summons application for judgment to

resolve questions of law or the interpretation of documents, that entitlement should only be exercised where it is possible and

appropriate so to do within the confines of a motion without running the risk of injustice. It seems to me that a similar consideration

necessarily applies concerning the extent to which it is appropriate to get into complex issues of law or construction on an application

to dismiss a case as being bound to fail. Like the summary judgment motion, such an application will be heard on affidavit and within

the confines of a motion rather than at a full hearing. The test which the court is required to apply is very similar. In a summary

judgment application, it is as to whether it is very clear that the defendant has no defence (this test is now well established, going

back at least to Aer Rianta cpt v. Ryanair Ltd. [2001] 4 I.R. 607). That is very similar to the test applied in a Barry v. Buckley

application which requires the court to be satisfied that the claim is bound to fail or, to use the language of the summary judgment

jurisprudence, that it is very clear that the plaintiff has no case and thus that the plaintiff’s claim is bound to fail.

3.12 It seems to me to follow from that analysis that there are cases which are just not suitable for an application to dismiss under

the inherent jurisdiction. Clearly, cases involving factual disputes (save to the very limited extent to which it is appropriate to engage

with the facts as identified in Keohane) have already been held to fall into that category. However, it seems to me that there are also

limitations on the extent to which cases which involve issues of law or construction can properly be the subject of an application to

dismiss under the inherent jurisdiction. The limitation is similar to that which was identified in McGrath as applying in the context of

summary judgment motions. A court should not entertain an application to dismiss where the legal issues or questions of construction

arising are themselves complex and such as would require the type of careful analysis which can only be carried out safely at a full

trial and in circumstances where the facts can be fully explored.

3.13 As far back as Sun Fat Chan v. Osseous [1992] 1 I.R. 425, McCarthy J. made the apposite comment that:-

“Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely

contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established

but the trial itself will disclose a different picture.”

3.14 A good example can be found in the distinction between the facts determined in Bakht v. The Medical Council [1990] 1 I.R. 515,

and those found in the subsequent case of Philips v. The Medical Council & ors [1991] 2 I.R. 115. In the latter case, Costello J. felt

free to depart from the facts found in Bakht (which had been heard on affidavit) because a more complete account became available

as a result of the oral evidence tendered in Philips. That was so notwithstanding the fact that the issues were to a significant extent

either legal or documentary. The fact that two High Court judges came to different conclusions on what were, to a significant extent,

facts which were the subject of a documentary record in, respectively, judicial review proceedings heard on affidavit and plenary

proceedings heard on oral evidence is a salutary lesson against the overuse of applications which prevent a full plenary hearing.

3.15 That is not, of course, to say that there will not be cases where the legal or documentary issues may be clear and

straightforward such that it is safe for the court to reach a conclusion on those questions on the hearing of a motion to dismiss. That

is also not to say that the fact that a plaintiff may make a large number of points, each one of which is clearly unstateable, should

not prevent a dismiss from being ordered. As Denham J. observed in a different context in Bula v. Tara Mines Ltd. (No. 6) [2000] 4

I.R. 412 at p.462, “seventeen noughts are still nothing.”

3.16 But I would caution against the appropriateness of the use of the application to dismiss under the inherent jurisdiction of the

court in relation to proceedings where, even if there are no factual disputes or any such factual issues as might arise come within the

strictures identified in Keohane, nonetheless the legal issues or questions concerning the proper interpretation of documentation are

complex. In such cases, the very complexity of the issues (even if the court has a fairly clear view on them) makes it difficult to

determine, within the confines of a motion heard on affidavit, that the plaintiff’s case is such that it can safely be said that it is

bound to fail.

3.17 For the reasons identified by Murray J. in Jodifern Ltd. v. Fitzgerald [2000] 3 I.R. 321, and as applied in Keohane, a motion to

dismiss should not be used as a means of obtaining a summary disposal of the case in circumstances where the issues which will need

to be addressed in deciding whether the proceedings are bound to fail are themselves complex. Leaving aside those cases which

might fall into the “seventeen noughts are still nothing” category, it is necessary to consider whether a case where the issues have

to be analysed on appeal, as they were in this case, for a full days hearing, can avoid the appropriate depiction of being too complex

to be properly dealt with within the ambit of a motion to dismiss as being bound to fail.

3.18 Before going on to consider whether this case is appropriate for an application to dismiss, it is also necessary to touch on one

general issue which arises from the argument strenuously put forward on behalf of both Ulster Bank and the Receiver to the effect

that the case made on appeal on behalf of Moylist differed, to a very considerable extent, from the case made in the High Court. I

turn to that question.

4. A New Case on Appeal

4.1 The circumstances in which it may be appropriate to allow for at least some evolution in a party’s case on an appeal were

considered in detail by this Court in Lough Swilly Shellfish Growers Co-operative Society Ltd. & anor v. Bradley & anor [2013] 1 I.R.

227 at para. 27, in which the judgment of the Court was given by O’Donnell J. Lough Swilly reiterated the importance of a party

bringing forward its full case at trial and identified the limited circumstances in which it may be appropriate for this Court to allow at

least some evolution in the case made on appeal.

4.2 It is, however, appropriate also to have regard to one aspect of the decision of this Court in Lopes v. Minister for Justice,

Equality and Law Reform [2014] 2 I.R.301 (see para. 78) as commented on in I.B.R.C. v. McCaughey [2014] 1 I.R. 749 at para. 24. It

is clear that some additional leeway may properly be given on appeal to a party who is faced with being deprived of what might

otherwise be their entitlement to a full trial. As McCarthy J. made clear in Sun Fat Chan, a case will not be dismissed if there is any

reasonable amendment to the pleadings which could save it from being unstateable. That observation stems from the general principle

that the court should be slow to dismiss proceedings as being bound to fail and should only do so in a clear case. While a plaintiff who

is faced with a motion to dismiss has an obligation to put forward the basis on which it is suggested that a sustainable claim exists at

the hearing of the motion, nonetheless the fact that the plaintiff may be deprived of a full hearing should any appeal result in a

decision that the proceedings should be dismissed means that the court may in some circumstances be prepared to give greater

latitude to such a plaintiff to argue further grounds on appeal.

4.3 As is implicit in the judgment of O’Donnell J. in Lough Swilly, it is necessary for a court which has to consider whether to allow an

additional argument to be advanced on appeal to engage in a balancing exercise. On the one side, there is the risk that, if a party is

excluded from arguing a new ground, a case which might otherwise be capable of being won may be lost. On the other side, there is

the potential unfairness to a party which has met the case made against it at a hearing in the High Court and is then asked to meet a

different case on appeal. The very factors identified by O’Donnell J. in Lough Swilly do, of course, touch on the extent of that

prejudice. In addition, it is necessary for any court to take into account the fact that an excessive indulgence in favour of allowing

parties to argue new cases on appeal can only be likely to lead to parties being less concerned to ensure that their full case is

presented before the first instance court, thus, in turn, leading to a significant additional burden on court time and a risk of injustice

across a whole range of cases. Except in the sort of cases identified by O’Donnell J. as being towards the appropriate end of the

spectrum, that balance will lead to the exclusion of a new ground. The point which I would wish to make, however, is that where an

appeal relates to an application to dismiss as being bound to fail, an additional factor has to be brought into that balancing exercise,

being the fact that the plaintiff concerned will, if the application is ultimately successful as a result of the outcome of the appeal, be

deprived of their opportunity to have a full hearing at all. That factor will not be decisive, but it may tip the balance in an appropriate

case.

4.4 Having made those general observations, I now turn to the case which Moylist asserts is not bound to fail.

5. The Case Made by Moylist

5.1 As pointed out at the beginning of this judgment, the commercial issue which arises between the parties in truth centres on the

question of who should suffer as a result of the collapse of Mr. O’Carroll’s development venture. The only substantial funds available

were those which might be realised from a sale of the development in the state in which it was (quite close to completion) when the

venture collapsed. Should those funds ultimately go to Ulster Bank (through the Receiver) which is, of course, the entity which put up

the money (quite an amount of it unpaid) which allowed those aspects of the development, for which Moylist was in fact paid, to be

constructed? On the other hand, is it to be Moylist, who constructed the development without having been paid for at least part of

that construction? In such cases, the likely result will depend on a fine analysis of the technical legal position. (See for example the

comments to the same effect in Headstart Global Fund Ltd. v. Citco Bank Nederland NV and ors [2010] I.E.H.C. 334).

5.2 Whether or not it is appropriate to refer to the issue as being one which fits neatly into the technical definition of “priorities”,

there can be little doubt that the issues debated before this Court over the course of a full day at least fit within a colloquial

description of priorities. That Moylist had a certain entitlement to enter into possession of the development as a result of the building

contract which it entered into with Mr. O’Carroll is not in doubt. The legal extent of that entitlement may, however, be dependent on

the proper construction of what was, in effect, a standard form RIAI contract. In particular, the question of whether Moylist could

have any continuing entitlement, even as against Mr. O’Carroll, to possession in circumstances where all work had ceased and where,

on the evidence currently available, the level of retained possession was, at its height, quite minimal is a further question.

5.3 On the other side of the equation, questions were raised as to whether, on the true construction of what appears to be a

standard form Ulster Bank general mortgage agreement, Ulster Bank was entitled to go into possession or to put in a receiver having

regard to the provisions of that deed, and relevant provisions of the Conveyancing Act 1881, the Registration of Title Act 1964 and

the Land and Conveyancing Law Reform Act 2009.

5.4 But if it were to transpire that Ulster Bank and/or the Receiver had a right to possession vis a vis Mr. O’Carroll but that Moylist

also had a similar right, then the issue of which entitlement would have to prevail would arise. That issue would require a

consideration of the nature of the entitlement of Ulster Bank under its mortgage. This question may be complicated because of the

unexplained fact that there was a considerable delay by Ulster Bank in registering its charge, thus giving rise to at least an argument

as to the status of that mortgage, as against any entitlements established by a third party, during the period prior to its registration.

In that context, it should be noted that it would appear that, whatever might have been the legal status of that possession, Moylist

may well have been in possession prior to the registration of Ulster Bank’s charge. On the other hand, it would seem that the high

water mark of the case which could be made by Moylist is to the effect that it held a contractual license. However, as noted earlier,

there may be an argument as to whether that right to possession had been terminated in accordance with the terms of the contract.

Furthermore, as also noted earlier, there may be a question as to whether the relatively minor acts of continuing possession which

Moylist asserts could be sufficient to establish the retention of possession. On top of all of those matters, there is then the further

question of the legal consequences of the agreement which was entered into between the receiver and Moylist after the receivership

had come into being, whereby Moylist was contracted to finish out the works on the site for an agreed sum of money. At least some

of those issues may turn out to involve mixed questions of law and fact. Equally, the result of some of those issues may, in turn,

impact on other issues, and might have an effect on the overall assessment concerning which right to possession might be said to

prevail.

5.5 In the High Court, Laffoy J. (at para. 32 of her judgment) cited the judgment of Vinelott J. in the High Court of England and Wales

in Astor Chemical Ltd. v. Synthetic Technology Ltd. [1990] B.C.L.C. 1 as authority for the approval of the analysis to be found in

Lightman and Moss, The Law of Receivers of Companies (1986) at p.81. It is not necessarily the case that the passage in question

fully represents the law in this jurisdiction in all of its detail. The passage certainly recognises that there may be circumstances where

a person is granted a charge on property where there is a contractual obligation in favour of another person which is inconsistent

with either the grant or enforcement of the charge. In some such circumstances, it seems from that authority that an injunction may

be available. There is no doubt but that the passage concerned refers to “actual” knowledge rather than any form of imputed

knowledge of the conflicting contractual obligation. But whether a requirement, in this context, for actual knowledge in its purest form

might represent the law in this jurisdiction may represent, in itself, a complex issue. If it were decided that there should be a

departure from an “actual knowledge” test in its purest form then the fact that it may be inferred that Ulster Bank was well aware

that a building contract was going to be entered into might be of some relevance to the competing interests in this case, particularly

given that the form of contract actually entered into was in a standard form which might well be expected to be executed in any

building arrangement. If that be so, then questions of who knew what and when might become relevant.

5.6 The above list of the questions which were debated before this Court is not exhaustive, but it perhaps explains why this appeal

was at hearing for a full day. As I have concluded that this case is not appropriate for determination on a motion to dismiss, I will

refrain from expressing any view on the merits of the points raised, for that might be taken to interfere with the proper role of the

trial judge who will now have to hear this case. I should emphasise that nothing that I have said should be taken as in any way

necessarily implying that the basis on which both Ulster Bank and the Receiver suggest that Moylist’s claim can be defended may not

turn out to provide a clear and full defence. The problem is that to reach such a conclusion, in the circumstances of this case and on

a motion to dismiss, would require the Court to engage in a detailed analysis of each of the points raised, not for the purposes of

determining who was right and who was wrong, but rather to determine whether Ulster Bank and/or the Receiver was sufficiently and

clearly right to the extent that it became manifest that Moylist had made a claim which was bound to fail. That sort of detailed

analysis is not, in my view, appropriate on an application to dismiss a case as being bound to fail. To allow for that sort of detailed

analysis would be to permit the form of summary disposal which Murray J. cautioned against in Jodifern.

5.7 To the extent that some of the argument ranged over issues which, it was said, had not been raised by Moylist in the High Court,

I would, at least for the purposes of this application, be nonetheless prepared to take them into account. Ulster Bank in particular

suggested that some of the matters raised in this Court for the first time gave rise to factual questions on which, had the issues

concerned been raised in the High Court, the bank might have put forward additional evidence. There may well be some merit in that

point, to a limited extent. However, quite a number of the points said to be new were, to a significant extent, purely legal or

documentary and, where documentary, were based on the same documents which were already before the Court. In the light of the

latitude which can properly be shown in respect of legal arguments, and in particular in circumstances where to do otherwise might

lead to a plaintiff’s case being dismissed when it was not truly bound to fail, I would not exclude from Moylist the opportunity to rely

on such arguments in this case.

5.8 In those circumstances, I have come to the conclusion that this case was just too complex to be properly disposed of in the

context of an application to dismiss as being bound to fail. It may or may not have appeared to be so complex when the motion was

originally brought. Indeed, the bringing of that motion has to be seen in the context of the fact that similar issues were required to be

addressed in the context of the application for an injunction brought by Moylist in which it would have been necessary for Moylist to

establish that it had a fair case to be tried. However, given the way in which the application to dismiss developed, it seems to me

that it is, at a minimum, no longer appropriate to deal with these issues in the context of a motion to dismiss.

5.9 I should make clear that I have come to that view not just because there are a significant number of points raised on behalf of

Moylist, for I am mindful of the fact that “seventeen noughts are still nothing”. However, in this case, the individual points, or at least

many of them, are sufficiently complex in themselves that it cannot be said that each of them is a “nothing” so that each of them, in

turn, can be found, in a simple and clear way, to provide no basis for a sustainable claim. It should be made clear, for the avoidance

of doubt, that the High Court retains an obligation to assess whether, in the way in which an application to dismiss as being bound to

fail may evolve, the issues raised remain sufficiently clear and easy to resolve as to render it appropriate to determine them within the

confines of such a motion. Where that is not the case, then the High Court should be free to decline to enter into the merits of those

points at all. To use a sporting analogy, the ‘dismiss as being bound to fail’ jurisdiction is intended to deal with the “slam dunk”. It

can, perhaps, also be used to deal with a number of separate points, each one of which is clearly also a slam dunk. But where, to

take a further sporting analogy from a different sport, it might be necessary to refer to the TMO, even if only on the basis of the

question which invites an answer to whether there is any reason not to award the try, the case is not suitable for such a motion. To

deal with such issues on such a motion is to slip into the error of giving the defendant the type of summary disposal which our

procedural law does not provide for and which Murray J. cautioned against in Jodifern. Such issues, by analogy with McGrath, cannot

safely be dealt with in the confines of a motion on affidavit.

6. Conclusions

6.1 For the reasons set out in this judgment I would, therefore, allow the appeal and discharge the order of the High Court dismissing

these proceedings as being bound to fail.

6.2 It follows that the proceedings should now follow their ordinary course in the High Court. However, having regard to the

considerable delay which has been encountered by reason of this excursion into what I have held to be an inappropriate form of

summary disposal, it seems to me that every effort should be made to afford this case the earliest possible trial date in the High

Court.