Unclean Hands and Alleged Illegality Will Not Usually Ground an Order 19, r. 28 Strike‑Out Where Ownership Is Registered and Fair Procedures Require a Trial

Case: Martin v Martin and Ors (Approved) [2026] IEHC 483
Court: High Court (Ms Justice Bolger)  |  Date: 14 July 2026  |  Record No.: 2024/2777 HP

1. Introduction

This decision concerns an application by the first defendant to dismiss plenary proceedings under Order 19, rule 28 for want of a reasonable cause of action / abuse of process / being bound to fail. The plaintiff claims he remains a 50% tenant in common of a commercial property (the East End Hotel, Portarlington) and seeks declaratory relief, injunctions, damages, and statutory orders for partition and sale. The first defendant contends that, following dissolution of a partnership between the parties, the plaintiff agreed to transfer his interest to the first defendant; and that the plaintiff’s prior written statements to State bodies (Revenue and NAMA), including a statutory declaration, should bar the plaintiff—by analogy with illegality principles and/or “unclean hands”—from obtaining relief.

Key issues

  • Whether the proceedings were amenable to strike-out given substantial factual disputes about any binding agreement transferring the plaintiff’s interest.
  • Whether alleged “unclean hands” arising from statements to Revenue and NAMA could justify dismissal (in whole or in part) at a preliminary stage.
  • How fair procedures constrain a court from determining serious wrongdoing allegations on affidavit in a strike-out application.

2. Summary of the Judgment

The High Court refused the strike-out application. Ms Justice Bolger held that the evidential and legal disputes were too substantial to conclude—at this interlocutory stage—that the plaintiff had no stateable case. While the plaintiff’s statements to Revenue and NAMA were relied upon heavily by the first defendant, the Court considered that the consequences argued for (illegality/unclean hands barring relief) could not properly be determined without trial procedures, including discovery and oral evidence.

The Court also noted that, even if an “unclean hands” argument might affect certain equitable remedies, the plaintiff’s damages claims and statutory partition/sale claims would remain live, as would the fact of the plaintiff’s co-ownership as shown on the relevant register.

3. Analysis

3.1 Precedents cited and their role

(a) Strike-out principles (Order 19, r. 28)

The Court accepted the orthodox “high threshold” propositions (as set out in the parties’ submissions), referencing: McAndrew v Salthill, Salthill, O'Malley and Keohane, Keohane, Kennedy, and Supermacs. Collectively, these authorities anchor the approach that:

  • the burden rests on the moving party;
  • dismissal is exercised sparingly;
  • the review of merits is limited;
  • conflicts of fact are resolved in the plaintiff’s favour;
  • the question is whether there is a stateable/arguable case; and
  • the court must be confident that the claim will fail regardless of discovery/trial evidence.

Applying these principles, the Court treated the extensive affidavit conflict (over 1,000 pages of material) as itself signalling that the case was not suitable for summary termination.

(b) Illegality / ex turpi causa

The first defendant relied on Quinn v IBRC [2016] 1 IR 1, including its endorsement (in that context) of Lord Goff’s approach in Tinsley v Milligan [1994] 1 AC 340, to argue that courts will not enforce transactions tainted by illegality and that no “merits assessment” arises once the relevant illegality policy is engaged.

The High Court distinguished the posture of the present case: the plaintiff’s pleaded foundation was registered co-ownership; no illegality was alleged as to the register entry itself. The illegality/unclean-hands argument was therefore not a straightforward “enforcement of an illegal contract” scenario but an attempt to preclude relief based on alleged wrongdoing evidenced by pre-litigation statements.

(c) Unclean hands and equitable relief; limits imposed by fair procedures

Two Court of Appeal decisions were central to the Court’s refusal to determine the “unclean hands” issue on affidavit:

  • English v O'Driscoll [2019] IECA 153: Peart J emphasised that serious conclusions (there, fraud) must be based on evidence at trial (or proper inferences from it), and that fair procedures are offended where allegations are not properly put to a party through trial mechanisms. The High Court used this as a direct warning against resolving grave wrongdoing allegations on an interlocutory strike-out record.
  • O'Longain v Burke [2025] IECA 148: The Court of Appeal held that even “egregious” misconduct (contempt) would not necessarily defeat equitable relief where withholding it would allow a fundamental unfairness to persist—there, the “spectre of unfairness” in an appeal process affected by objective bias. Ms Justice Bolger applied this reasoning by analogy: alleged lack of candour to State bodies could not, without more, justify depriving the plaintiff of the ability to vindicate rights through a trial where fair procedures are engaged.

(d) Interlocutory candour in injunction applications

The first defendant invoked Strategic Land Investments Ltd v Kenny Galway Ltd [2025] IECA 65 as an example of judicial criticism where a party failed to inform the court of relevant developments and was refused an interlocutory injunction. The High Court distinguished it on two bases: (i) an explanation was offered here; and (ii) refusing an interlocutory injunction is materially different from dismissing proceedings outright.

3.2 Legal reasoning

(a) Why the dispute was not strike-out suitable

The Court emphasised that the heart of the case—whether a binding agreement existed to transfer the plaintiff’s interest—was sharply contested: draft dissolution/partition documents were never executed; correspondence referred to “draft” and “proposed exchange”; and the first defendant’s position depended on interpreting negotiations and subsequent conduct. On an Order 19, r. 28 motion, such disputes cannot be finally resolved by preferring one affidavit narrative over another.

(b) Treatment of the plaintiff’s statements to Revenue and NAMA

The first defendant characterised the plaintiff’s statements (including a statutory declaration) as untrue and legally disabling. The Court treated the issue as potentially serious, but not determinative at the pleadings/strike-out stage, for three connected reasons:

  • Procedural posture: the allegations were advanced on affidavit, not tested by discovery and oral evidence.
  • Fair procedures: per English v O'Driscoll [2019] IECA 153, findings of serious wrongdoing should be reached on trial evidence, with the allegations properly put and answered.
  • Remedial consequences: even if equitable relief were in jeopardy (a matter not decided), legal damages and statutory partition/sale remedies would remain, as would the relevance of the plaintiff’s registered status.

(c) Discovery and missing documents

The Court noted the plaintiff’s claim that relevant documents were missing due to an office theft (corroborated by another affidavit), and that discovery might yield documents held by the first defendant. This reinforced the Supermacs-type caution: the Court could not be confident that “no matter what may arise on discovery or at the trial” the claim would fail.

3.3 Impact

  • Constraining “unclean hands” as a strike-out tool: the judgment signals that alleged impropriety in pre-litigation dealings with regulators/State bodies will rarely justify dismissal under Order 19, r. 28 where the plaintiff maintains a stateable claim and disputes require trial testing.
  • Fair procedures as a practical limit on interlocutory merits determinations: even where an “illegality” framing is advanced, the court will be slow to deny access to trial without proper evidential ventilation.
  • Remedy-sensitive analysis: the decision highlights that “equity” arguments may not dispose of proceedings where legal and statutory remedies (damages, partition, sale) are pleaded alongside equitable relief.
  • Property litigation and registers: where a plaintiff relies on being recorded as co-owner on a register, the court may treat that as a substantial anchor for a stateable case, even if competing contractual/dissolution narratives exist.

4. Complex Concepts Simplified

  • Order 19, r. 28 strike-out: a procedure allowing the court to end a claim early where it is clearly unsustainable. It is used sparingly because it prevents a full trial.
  • Ex turpi causa / illegality: a principle that a court will not assist a party to benefit from their own illegal act—most straightforwardly by refusing to enforce an illegal contract.
  • Unclean hands: an equitable doctrine where a party’s improper conduct connected to the relief sought can justify refusing equitable remedies. It is discretionary and context-sensitive.
  • Fair procedures: the requirement that serious allegations be tested through a fair process (including the opportunity to answer them), typically by discovery and oral evidence at trial rather than affidavit-only motion practice.
  • Partition / statutory sale: statutory mechanisms enabling co-owners to seek division of property or sale with distribution of proceeds, even where co-ownership is contentious.

5. Conclusion

Martin v Martin and Ors (Approved) [2026] IEHC 483 reaffirms the strictness of the Order 19, r. 28 threshold in factually contested property/partnership dissolution disputes. It also clarifies that allegations of “unclean hands” based on statements to State bodies, even if potentially grave, will generally require trial-level testing and cannot readily be used to short-circuit proceedings—particularly where doing so would undermine fair procedures and where non-equitable remedies remain in play.

Postscript: Costs (indicative view)

The Court’s indicative view was that the plaintiff should recover the costs of the application under s. 157 of the Legal Services Regulation Act 2015 (to be adjudicated in default of agreement), but that execution should be stayed pending the outcome of the proceedings.