Out-of-time judicial review dismissals operate as res judicata: High Court strikes out collateral plenary challenge; “continuing breach” and Greendale fraud arguments rejected

Introduction

In Browne v Registrar General of Fishing Boats & Ors [2025] IEHC 486, the High Court (Mulcahy J) granted the defendants’ application to strike out plenary proceedings under Order 19, rule 28(1) RSC (as amended by SI 456/2023). The Court held that a prior dismissal of substantially the same controversy as out of time in judicial review terms operates as a final procedural bar (res judicata) to collateral re‑litigation in plenary form. The Court also rejected arguments that the underlying administrative decision involved a “continuing breach” of law and that the earlier litigation was tainted by deception justifying exceptional reopening under the Greendale jurisdiction.

The case arises from the re‑measurement of the plaintiff’s fishing vessel (MFV Áine Íde) in 2003, which led to its reclassification from “over 65 ft” to “under 65 ft” with significant licensing and quota implications. Having failed in earlier proceedings (2012–2023) because the challenge was out of time, the plaintiff launched fresh plenary proceedings in 2017, framed around the Registrar’s processing of a Capacity Assignment Note concerning the vessel’s capacity secured to the Governor and Company of the Bank of Ireland. The Court concluded that the new proceedings remained, in substance, an impermissible attempt to re‑litigate the lawfulness of the 2003 re‑measurement.

Summary of the Judgment

The High Court struck out the proceedings pursuant to Order 19, rule 28(1) on the bases that the claim:

amounted to an abuse of process (res judicata and Henderson v Henderson),
was bound to fail and had no reasonable chance of success, and
disclosed no independent cause of action separate from the time‑barred challenge to the 2003 re‑measurement.

The Court held that (i) a previous final determination that a challenge is out of time operates as a procedural bar equivalent to a merits determination; (ii) a one‑off administrative decision with ongoing effects is not a “continuing breach” that perpetually resets limitation; and (iii) allegations that the State misled the earlier courts by not citing certain publicly available statutory instruments fell far short of the exceptional “fraud/fundamental denial of justice” threshold necessary to reopen final orders under the Greendale line of authority. The Court also recorded that, while a want‑of‑prosecution strike‑out would have inevitably succeeded under Kirwan v Connors [2025] IESC 21 given the plaintiff’s 5‑year inactivity, that relief was not sought and so was not the basis of the strike‑out. Costs were provisionally awarded to the defendants.

Factual Background and Procedural History

1978–2004: The MFV Áine Íde was registered at 65.5 ft. In 2003, the Marine Survey Office (MSO) re‑measured it under Council Regulation (EC) No 3259/94 and recorded its length as 63.79 ft; the register was updated in April 2004. The Minister was confirmed of the measurement by the MSO in October 2006. Thereafter, the vessel did not obtain “over‑65 ft” licences.
2011–2012: Policy directives allocated quotas based on track record, disadvantaging the plaintiff after loss of “over‑65 ft” licensing. The plaintiff issued plenary proceedings in 2012 challenging both the policy directives and, in substance, the under‑65 ft classification.
2019–2023: The High Court ([2019] IEHC 237) and Court of Appeal ([2020] IECA 186) dismissed the 2012 proceedings as time‑barred because they constituted, in essence, a challenge to a public law decision which ought to have been pursued by judicial review within time; the Supreme Court refused leave ([2023] IESCDET 35).
2017–2025: In parallel, the plaintiff issued the present plenary proceedings focused on the Registrar’s processing of a Capacity Assignment Note relating to a fixed charge over capacity in favour of Bank of Ireland. An interlocutory injunction was withdrawn in 2018. No further steps were taken until a Statement of Claim in December 2023, which reprised and expanded key declaratory reliefs from the 2012 case. The defendants moved to strike out under Order 19, rule 28(1).

Issues for Determination

The Court addressed three principal questions:

Whether the present proceedings disclosed an independent cause of action, or were, in substance, a renewed attack on the 2003/2006 re‑measurement already found to be out of time in the 2012 proceedings.
Whether the doctrines of res judicata and Henderson v Henderson, together with the abuse‑of‑process jurisdiction, barred the re‑litigation notwithstanding the absence of a merits determination in 2019/2020.
Whether the plaintiff’s “continuing breach” and “fraud/omission to disclose statutory instruments” arguments avoided the procedural bar or warranted exceptional reopening under the Greendale jurisdiction.

Core Holdings

Res judicata applies to a prior out‑of‑time dismissal: A final determination that a claim is time‑barred is itself res judicata as to that route of challenge; parties cannot evade it by reframing claims in new proceedings.
Henderson v Henderson applies: New legal grounds that could have been raised previously cannot be advanced now; collateral attacks on final orders are an abuse of process.
No “continuing breach”: The 2003/2006 re‑measurement was a one‑off decision; its ongoing effects do not reset time. The plaintiff had not sought a fresh re‑measurement, so there was no new decision to challenge within time.
Greendale not engaged: The alleged non‑disclosure of publicly available statutory instruments (SIs 821/2004, 822/2004, 823/2004, 20/2006) did not constitute fraud or a fundamental denial of justice, and was not material to the time‑limit rulings in the earlier litigation.
No independent case on Capacity Assignment Note: Any complaint about tonnage under a charge is a matter between the plaintiff and the charge‑holder; no separate cause of action was pleaded against the State defendants that did not depend on impugning the 2003/2006 measurement.
Strike‑out under Order 19, rule 28(1): The claim disclosed no reasonable cause of action independent of the time‑barred challenge, amounted to an abuse of process, and was bound to fail/had no reasonable chance of success.

Analysis

Precedents and Authorities Cited

Browne v Minister for Agriculture & Ors ([2019] IEHC 237; [2020] IECA 186; leave refused [2023] IESCDET 35): The earlier litigation framed the legal landscape. Both courts held that the plaintiff’s core complaint—re‑measurement and reclassification—was, in substance, a challenge to administrative decisions reviewable only within Order 84, rule 21 time limits. The Court of Appeal further held that applying domestic time limits to EU‑law‑based claims (including Francovich damages) is acte clair and compatible with equivalence and effectiveness principles.
Morrissey v Irish Bank Resolution Corporation [2015] IEHC 200: Costello J articulated the policy underpinnings of res judicata and broader abuse‑of‑process controls—finality of litigation and fairness to opposing parties—supporting strike‑out remedies where litigants seek to re‑litigate decided issues.
Mullaney v Ireland [2023] IECA 195: The Court of Appeal condemned collateral attacks on valid, final High Court orders. The High Court relied on this to characterise the present proceedings as an impermissible end‑run around the final orders in the 2012 case.
Greendale Developments Ltd (No. 3) [2000] 2 IR 514; Student Transport Scheme Ltd v Minister for Education and Skills [2021] IESC 35; applied in Bank of Ireland v Carey [2024] IECA 247: These authorities set the high threshold for reopening final orders: “strong reasons” and a “fundamental denial of justice” where no other remedy exists. The High Court held the plaintiff’s assertions of “deception” fell far short.
Express Bus (as referenced in the 2019 High Court judgment) and the “Shell case” (Clarke J’s exception): Authorities used in the earlier proceedings to demonstrate that relabelling a challenge as damages does not circumvent judicial review time limits, save in the narrow “defensive” exception—irrelevant here.
Köbler v Austria, Case C‑224/01: The plaintiff cited Köbler to suggest a “continuing breach” and possible EU‑law liability of courts. The High Court found Köbler inapposite: the domestic courts had correctly applied settled EU principles on procedural autonomy, equivalence, and effectiveness; no sufficiently serious breach was alleged or pleaded.
Kirwan v Connors [2025] IESC 21: Although not determinative (because the defendants did not bring a want‑of‑prosecution motion), the Court noted Kirwan’s significance—five years of inactivity would have “inevitably” warranted strike‑out had that ground been pursued.

Legal Reasoning

Order 19, rule 28(1) (post‑SI 456/2023) as a proactive filter: The Court invoked the modernised strike‑out test, which expressly empowers strike‑out where a claim discloses no reasonable cause of action, amounts to an abuse, is bound to fail, or has no reasonable chance of success. The judge emphasised the centrality of the 2003/2006 re‑measurement to every pleaded grievance, including the Capacity Assignment Note. With no independent cause of action articulated, the claim was bound to fail.
Res judicata even without a merits adjudication: The plaintiff argued that because his earlier case was dismissed on limitation grounds, he had never had a “merits” hearing and so res judicata should not apply. The Court rejected this: a final time‑bar ruling is itself a final determination and bars fresh proceedings on the same underlying decision. To accept otherwise would eviscerate finality and render judicial review time limits redundant.
Henderson v Henderson abuse: Even if the plaintiff now relied on new legal arguments (e.g., later‑identified statutory instruments), such grounds could and should have been advanced earlier. Henderson precludes bringing them in subsequent proceedings.
“Continuing breach” distinguished from continuing effects: The re‑measurement was a discrete decision in 2003 (confirmed 2006). Its ongoing consequences (licensing/quota outcomes) do not convert it into a continuing breach restarting time. The Court also noted, tellingly, that the plaintiff never sought a fresh re‑measurement—there was no new administrative decision capable of grounding a timely challenge.
Alleged non‑disclosure/fraud and the Greendale threshold: The plaintiff claimed the State failed to alert the courts to SIs defining “length” (SIs 821/2004, 822/2004, 823/2004, 20/2006). The Court held:
- The SIs were public; there was no concealment.
- At highest, they could have borne on the merits of the measurement method, not on the preliminary time‑limit question actually decided in 2019/2020.
- No “fundamental denial of justice” arose; the Greendale jurisdiction was not engaged.
No standalone claim about the Capacity Assignment Note: Complaints about tonnage vis‑à‑vis a secured creditor pertain to issues between the plaintiff and the charge‑holder. Without an unlawful administrative underpinning (itself time‑barred to challenge), no claim lies against the State defendants.
Collateral attack forbidden: Reliance on Mullaney confirmed that repackaging the same challenge in a new suit is an impermissible collateral attack on final orders.

Impact and Significance

This decision has several system‑wide implications:

Finality of time‑bar rulings: The High Court expressly confirms that a dismissal on limitation grounds in a public law context is res judicata. Litigants cannot re‑open the underlying decision by reframing claims in plenary form (damages, declarations, equitable relief) or by anchoring them to collateral administrative acts (e.g., processing a capacity note).
“Continuing breach” arguments narrowly confined: Parties cannot reset time by characterising the enduring consequences of a one‑off decision as a fresh breach. Absent a new decision or refusal (e.g., to re‑measure again), limitation runs from the original decision’s finality.
Greendale’s fraud/denial of justice exception remains exceptional: Omission to cite publicly available legislative instruments—especially where not material to the procedural ruling actually made—does not approach the threshold for reopening final orders.
Reaffirmation of EU procedural autonomy principles: The Court’s reasoning is aligned with the Court of Appeal’s 2020 finding that domestic judicial review time limits apply to EU‑law‑based claims (including Francovich damages), consistent with equivalence and effectiveness. Attempts to rely on Köbler without pleading a sufficiently serious judicial breach will fail.
Practical litigation management under O.19 r.28(1): The modernised rule is an efficient tool for early disposal of claims that are abusive, bound to fail, or lack an independent cause of action. Defendants should consider early strike‑out where a plaintiff attempts collateral re‑litigation — and, separately, plead want of prosecution where there is prolonged inactivity (cf. Kirwan).
Sector‑specific message (fisheries/maritime): Vessel measurement and classification decisions must be challenged promptly. Later instruments defining “length” for particular licensing regimes will not retroactively confer entitlements or revive stale disputes about prior EU‑law measurement decisions.

Complex Concepts Simplified

Res judicata: Once a court gives a final decision on an issue (including that a claim is out of time), the same parties cannot re‑litigate that issue in new proceedings.
Henderson v Henderson rule: Parties must bring all available grounds the first time. You cannot hold back arguments and run them later in fresh proceedings.
Collateral attack: Using a new case to undermine or contradict a final court order in an earlier case. This is an abuse of process.
Greendale jurisdiction: An exceptional power to reopen a final order where there are “strong reasons,” such as a fundamental denial of justice (e.g., actual fraud), and no other remedy exists. It is sparingly exercised.
Judicial review time limits (Order 84, rule 21): Public law decisions must be challenged promptly, within strict time limits. You cannot avoid those limits by re‑labelling the claim as a plenary action for damages or declarations.
Continuing breach vs. continuing consequences: A continuing breach happens where the unlawful conduct itself repeats or persists. A one‑off decision with lasting effects is not a continuing breach; limitation runs from the decision.
Francovich damages: An EU‑law remedy against a state for losses caused by a sufficiently serious breach of EU law. Domestic procedural time limits still apply, provided they comply with equivalence and effectiveness.
Capacity Assignment Note (fisheries context): An administrative step recording the transfer or assignment of vessel capacity (e.g., tonnage) often linked to security interests (fixed charges). Challenging the processing of the note generally requires an underlying illegality in the administrative baseline; absent that, there is no independent wrong.

What the Judgment Does and Does Not Decide

Does decide:
- Out‑of‑time dismissals of public law challenges are final for res judicata purposes and preclude later plenary re‑litigation.
- “Continuing breach” arguments cannot revive challenges to a one‑off administrative decision whose effects endure.
- Alleged non‑citation of public SIs does not amount to fraud or a fundamental denial of justice warranting Greendale reopening, especially where immaterial to the earlier time‑limit rulings.
- No independent cause of action was pleaded regarding the Capacity Assignment Note against State defendants.
Does not decide:
- Whether the 2003 re‑measurement was substantively lawful—the court did not reach the merits, just as the earlier courts did not (because of limitation).
- The precise contours of any duty of candour in inter partes public law litigation beyond affirming that failure to cite public SIs was not deceptive in these circumstances.
- How any future fresh measurement decision (if requested and made/refused) might be challenged within time; the Court simply observed none had been sought.

Key Practical Lessons

Identify promptly whether a dispute involves a public law decision and, if so, move within Order 84 time limits or seek an extension with cogent reasons.
Do not assume that repackaging a time‑barred judicial review as plenary claims (damages/declarations/equity) will avoid limitation.
Bring all relevant arguments and instruments (statutes/SIs/regs) at the first opportunity; Henderson will bar later attempts to add them.
“Continuing breach” is a narrow concept; distinguish the continuation of a decision’s effects from the repetition of unlawful conduct.
Allegations of deception/fraud must be particularised and material; public availability of instruments and immateriality to the earlier ruling will defeat Greendale arguments.
For defendants, consider early O.19 r.28 applications where res judicata/abuse‑of‑process issues arise; separately consider want‑of‑prosecution where there is prolonged inactivity.

Conclusion

Browne v Registrar General of Fishing Boats & Ors solidifies several important procedural principles. First, a judicial review time‑bar ruling is a final determination for res judicata purposes: litigants cannot re‑litigate the same administrative decision by reframing their claims. Second, the Court robustly polices the line between continuing consequences and continuing breaches, rejecting limitation workarounds that would erode finality. Third, Greendale’s exceptional jurisdiction remains tightly cabined; allegations of non‑citation of public instruments do not, without more, constitute fraud or a fundamental denial of justice. Finally, the decision illustrates the practical bite of the updated Order 19, rule 28 in excising claims that are abusive or bound to fail at an early stage.

In the broader legal context—spanning public law, EU‑law‑based damages claims, and sectoral regulation (here, fisheries)—the judgment reaffirms the primacy of timeliness, finality, and disciplined pleading. Parties must assemble and advance their full arsenal of grounds at the outset and within time; attempts to litigate by instalment or collateral attack will meet a firm procedural response.