Desmond v Mr Justice Michael Morarty & Ors

Factual and Procedural Background

This opinion concerns an application by the Defendant seeking to strike out or dismiss the Plaintiff's claims on the grounds that the statement of claim discloses no reasonable cause of action, is frivolous or vexatious, has no reasonable prospect of success, or contains scandalous matters prejudicial to a fair trial.

The Plaintiff previously initiated judicial review proceedings against the Defendant, who was the sole member of a Tribunal of Inquiry. The Plaintiff sought to prevent the Defendant from introducing a public report ("the Glackin Report") into evidence at the Tribunal, contending that the report was outside the Tribunal's terms of reference and thus the inquiry was ultra vires. The Plaintiff's judicial review was unsuccessful in the High Court and the Supreme Court, with the latter rejecting the appeal in January 2004.

In the present proceedings, the Plaintiff seeks to have the judgments of both courts set aside on the basis that the Defendant caused or permitted misleading, untrue, and inaccurate evidence to be presented to those courts, amounting to fraud and a fundamental breach of fair procedures. The Plaintiff contends that an affidavit sworn by a Tribunal solicitor was misleading and that non-disclosure of material information affected the judicial review outcomes.

The Tribunal was investigating matters including the awarding of the second GSM mobile phone licence to the ESAT consortium, of which the Plaintiff became a member through his company. Legal advice was sought by the relevant Department regarding changes in the consortium's ownership before and after the licence award. The Tribunal initially misunderstood the scope of this advice, which led to errors acknowledged in 2010.

The Plaintiff's judicial review failed partly because the Tribunal and courts operated under a misapprehension about the legal advice concerning ownership changes. The Plaintiff now relies on the non-disclosure of this advice to challenge the finality of the judicial review judgments.

Legal Issues Presented

1. Whether the Plaintiff's statement of claim discloses a reasonable cause of action or is frivolous, vexatious, or an abuse of process warranting dismissal or striking out under Order 19, Rules 27 and 28 of the Rules of the Superior Courts or the inherent jurisdiction of the court.
2. Whether the Plaintiff has sufficiently pleaded and can prove fraud or deliberate dishonesty by the Defendant or the Tribunal such as to set aside final judgments of the High Court and Supreme Court.
3. Whether there exists a jurisdiction to set aside final and conclusive judgments on grounds of breach of fair procedures or constitutional rights in exceptional circumstances.
4. The proper application and scope of the principles governing the setting aside of final court judgments on the basis of fraud or procedural unfairness.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff's claims disclose no reasonable cause of action and are frivolous and vexatious.
• The proceedings have no reasonable prospect of success and constitute an abuse of process.
• The statement of claim contains unnecessary and scandalous matters prejudicial to a fair trial.
• The Plaintiff has not pleaded fraud with the required particularity and has failed to establish deliberate and purposeful dishonesty or intentional deceit of the court.
• The judgments of the High Court and Supreme Court are final and conclusive and cannot be set aside except in exceptional circumstances such as fraud proved with particularity or breach of fair procedures by the courts themselves.
• The non-disclosure and alleged misleading evidence arose from a mistaken understanding by the Tribunal and its solicitor, not from deliberate fraud.

Plaintiff's Arguments

• The Defendant caused or permitted misleading, untrue, and inaccurate evidence to be given to the High Court and Supreme Court which led to the refusal of judicial review.
• The judgments and orders of both courts were obtained by fraud on the part of the Defendant and his agents.
• The failure to disclose material legal advice amounted to a fundamental breach of fair procedures going to the heart of the evidence.
• The affidavit sworn by the Tribunal solicitor was misleading due to wilful or reckless misstatements and omissions.
• The Plaintiff seeks declarations that the judgments are nullities and orders impeaching those judgments.
• The Plaintiff accepts the need to plead fraud with particularity but contends that the requirements have been met.
• The Plaintiff also contends there is jurisdiction to set aside final judgments on grounds of breach of constitutional rights or fair procedures.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aer Rianta v. Ryanair Limited [2004] 1 IR 506	Order 19, Rule 28 jurisdiction to strike out pleadings; courts exercise caution but will strike out if claim bound to fail.	Court acknowledged the slow exercise of jurisdiction but affirmed that if claim lacks reasonable cause of action, striking out is appropriate.
Kenny v. Trinity College Dublin [2008] 2 IR 40	Principles for setting aside judgments on grounds of fraud; requirement of deliberate dishonesty, effect on judgment, and particularity.	Court applied stringent test requiring clear and unambiguous pleading of fraud affecting impugned decision fundamentally.
Tassan Din v. Banco Ambrosiano SPA [1991] 1 IR 569	Fraud must be pleaded and proved with particularity to set aside Supreme Court decision; caution against abuse of process.	Referenced to emphasize the necessity of particularity and proof of fraud for setting aside final decisions.
Bula Holdings v. Roche [2009] IESC 36	Claims of fraud of utmost gravity require clear basis; proceedings with no reasonable prospect of success are abuse of process.	Court found proceedings based on alleged fraud had no reasonable prospect of success and were abusive.
Adams v. Minister for Justice [2011] 21 LRM 452	Claims of fraud must be substantiated; frivolous claims dismissed as abuse of process.	Supported dismissal of claims lacking substantiated fraud allegations.
Fay v. Tegral Pipes Limited [2005] 2 IR 261	Definition and purpose of "frivolous and vexatious" jurisdiction to prevent abuse of court process.	Emphasized courts' duty to prevent misuse of access to courts for lost causes without legal basis.
Barry v. Buckley [1981] IR 306	Inherent jurisdiction of court to strike out claims with no reasonable prospect of success or abuse of process.	Reinforced principle that claims doomed to fail should be struck out without full hearing.
Riordan v. Hamilton (Unreported, Supreme Court, 2002)	Order 19, Rule 27: striking out pleadings containing scandalous or prejudicial matters.	Recognized that pleadings should not contain unnecessary scandalous allegations prejudicial to fair trial.
Re Greendale Developments Limited (No. 3) [2002] IR 514	Exceptional jurisdiction to set aside final orders on grounds of breach of fair procedures or constitutional justice.	Confirmed exceptional nature of jurisdiction to revisit final orders for fundamental breaches of justice.
L.P. v. M.P. [2002] 1 IR 219	Jurisdiction to amend or set aside final orders limited to correcting errors or fraud; exceptional circumstances required.	Held that finality of Supreme Court decisions is paramount except in rare cases of fraud or breach of constitutional justice.
R. v. Bow Street Magistrates, ex parte Pinochet (No. 2) [1999] 2 WLR 272	House of Lords inherent jurisdiction to rescind or vary earlier orders in cases of unfair procedure.	Illustrated that ultimate courts retain inherent jurisdiction to correct injustice caused by prior orders.
Waite v. House Spring Gardens Ltd (Unreported, High Court, 1985)	Action to set aside judgment obtained by fraud requires no leave; fraud on the court is a serious ground.	Supported principle that judgments obtained by fraud may be impeached by action with particularity.
Janesco v. Beard [1930] AC 298	Fraud to impeach judgment must be alleged and proved with exactness; mere allegation insufficient.	Emphasized strict requirements for pleading and proving fraud to set aside judgments.

Court's Reasoning and Analysis

The Court carefully examined the Plaintiff's claims in light of established legal principles governing the setting aside of final judgments on grounds of fraud or breach of fair procedures. It noted that the jurisdiction to strike out claims under Order 19, Rule 28, and inherent jurisdiction to dismiss claims is exercised cautiously, only where a claim is clearly bound to fail.

The Court reviewed the key affidavit sworn by the Tribunal solicitor, which was central to the Plaintiff's allegations of misleading evidence. It found that the solicitor and the Tribunal had operated under a genuine misapprehension regarding the legal advice furnished to the Department. There was no evidence that the solicitor or Tribunal deliberately or recklessly misled the courts.

The Plaintiff had not pleaded fraud in the strict legal sense but relied on assertions of misleading, untrue, and inaccurate evidence. The Court reiterated that to set aside judgments on grounds of fraud requires deliberate and purposeful dishonesty, knowing and intentional deceit, pleaded with particularity, and shown to affect the decision fundamentally.

Furthermore, the Court examined the judicial review judgments and found no indication that the impugned affidavit materially influenced the outcome or went to the root of the decisions. The Plaintiff had assumed a heavy burden in seeking to impeach final and conclusive Supreme Court decisions, which was not met.

Regarding the exceptional jurisdiction to set aside final orders for breach of fair procedures or constitutional rights, the Court concluded no such breach by the courts themselves had been shown. The Plaintiff's claims did not satisfy the stringent requirements for reopening final decisions.

Consequently, the Court found that the Plaintiff's statement of claim disclosed no reasonable cause of action, the claims had no reasonable prospect of success, and the proceedings were an abuse of process.

Holding and Implications

The Court granted the Defendant's application, effectively DISPOSING OF the Plaintiff's claims by striking out the statement of claim in its entirety.

The direct effect of this decision is that the Plaintiff's attempt to impeach and set aside the final judgments of the High Court and Supreme Court on grounds of alleged fraud and procedural unfairness failed. The decision reinforces the principle of finality of litigation and the high threshold required to overturn final court orders. No new precedent was established beyond the application of settled law to the facts of this case.