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Keane v Clarke (Approved)
Smart Summary
Factual and Procedural Background
These proceedings were commenced by the Plaintiff in January 2025 against the Defendant. The Defendant sought dismissal on multiple grounds by motion issued in November 2025. The Plaintiff had previously been defendant to an action brought by Person A and Person B in the Circuit Court (commenced 2020) in which the Circuit Court (Judge Kelly) delivered judgment on 19 September 2025 in favour of Person A and Person B, awarding damages and making prohibitory orders and ordering removal of publications. The Defendant acted as solicitor for Person A and Person B in those Circuit Court proceedings. The Plaintiff has appealed the Circuit Court decision and has commenced judicial review proceedings against a number of respondents. The parties brought competing motions (the Defendant's motion to dismiss and the Plaintiff's motion to amend) before Judge Quinn on 16–17 July 2026. Judge Quinn permitted the Plaintiff to amend his pleadings and heard the Defendant's motion to dismiss.
Legal Issues Presented
- Whether the Plaintiff's proceedings should be dismissed under Order 19, rule 28 RSC as disclosing no reasonable cause of action, being bound to fail, frivolous or vexatious.
- Whether the proceedings constitute an abuse of process (including application of the doctrine of res judicata and the rule in Henderson v Henderson).
- Whether a legal restraint order (LRO) / Isaac Wunder-type order should be made against the Plaintiff on the basis that the proceedings are vexatious and that the Plaintiff has commenced multiple complaints or proceedings against the Defendant.
Arguments of the Parties
Defendant's Arguments
- The proceedings are bound to fail and/or are frivolous and vexatious and should be struck out under Order 19, rule 28 RSC.
- The proceedings constitute an abuse of process, including being res judicata and barred by the rule in Henderson v Henderson.
- An LRO should be made because the Plaintiff has commenced several other complaints or proceedings against the Defendant and the present proceedings are vexatious.
Plaintiff's Arguments
- The Plaintiff sought a fact-finding exercise into: (a) alleged wrongful delay and misinformation about the source and accuracy of English translations of the Civil Bill; (b) alleged improper handling or suppression of discovery (CCTV) in the Circuit Court proceedings; and (c) alleged improper description of the Defendant's solicitor firm on court records (reference to "Company A" and use of "and Co.").
- The Plaintiff sought declarations and damages and explained that translation issues consumed his time and affected his focus on discovery.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Tracey v Burton [2016] IESC 16 |
Describes the court's inherent jurisdiction to manage proceedings and to strike out for abuse of process; guidance on balancing litigant rights and court integrity. |
Relied on to explain the jurisdiction to dismiss for abuse of process and to show the court may take proportionate steps to protect integrity of its processes. |
| Henderson v Henderson |
Rule preventing re-litigation of matters that could and should have been raised in earlier proceedings. |
Considered by the court; applied conceptually but the court found the rule did not bar the Plaintiff's claims because prior decisions were interlocutory or involved different parties and did not decide the present issues. |
| (1843) 3 HARE 100 |
Citation of Henderson v Henderson. |
Used to identify the historic source of the rule; court concluded it did not apply here for reasons set out in the judgment. |
| Morrissey v IBRC [2015] IEHC 200 |
Summary of principles and policies underpinning res judicata and the related jurisdiction to restrain abuse of process. |
Used to summarise the elements a party alleging res judicata must demonstrate and to frame analysis of finality and same-issues/same-parties requirements. |
| Law Society v Walker [2006] IEHC 387 |
Authority that a solicitor can owe certain duties to an opposing party ("your opponent"). |
Referenced to note that, on the pleadings, it is arguable a solicitor may owe duties to the Plaintiff and therefore the dismissal bar for no cause of action is high. |
| Scotchstone v Ireland [2022] IECA 23 |
Principles on applications to dismiss proceedings as frivolous, vexatious or bound to fail. |
Relied on for guidance about when dismissal on those grounds is appropriate; court noted high threshold and applied this approach. |
| M. v M. [2026] IESC 2 |
Recent authority on Legal Restraint Orders (Isaac Wunder orders). |
Referenced to frame the legal context for LRO applications; court concluded an Isaac Wunder-type order was not appropriate on the material before it. |
| [2024] IESCDET 81 |
Supreme Court decision(s) refusing leave to appeal in related interlocutory context. |
Cited by Defendant but the court found these determinations were not decisions "on the merits" sufficient to found res judicata or application of Henderson v Henderson. |
Court's Reasoning and Analysis
The court addressed the Defendant's contentions in sequence.
1) Res judicata / Henderson v Henderson: The court examined prior interlocutory rulings (Circuit Court DAR 20 December 2022; High Court DAR 10 July 2023) and the Circuit Court trial judgment. It found prior rulings were interlocutory, not final decisions on the merits, and often concerned proceedings between the Plaintiff and Person A/Person B rather than between the Plaintiff and the Defendant. The court therefore concluded the Defendant had not established the requirements for res judicata or that the rule in Henderson v Henderson barred the present claims. The court also treated the cited Supreme Court determinations ([2024] IESCDET 81 and the October 2024 ruling) as not being decisions on the merits for res judicata purposes.
2) No reasonable cause of action: The Defendant did not press a strike-out on the face of the pleadings as a primary ground. The court noted the high threshold for such an application and observed that on the pleadings and the authorities (including Law Society v Walker) it could not conclude, at this stage, that the Plaintiff's pleaded case disclosed no entitlement to any remedy if proved.
3) Abuse of process and LRO: The court considered whether the proceedings were an abuse of process and whether an LRO (Isaac Wunder-type order) was warranted. It emphasized that the Defendant bore the evidential burden and that, in his affidavits, the Defendant largely relied on denials and assertions that issues had been previously dealt with without engaging with particulars. Given that evidential deficiency, the court was not satisfied the Plaintiff's proceedings constituted an abuse of process or that an LRO should be made.
Overall, the court applied the statutory strike-out test (Order 19, rule 28 RSC), the described jurisprudence on res judicata and abuse of process, and the relevant authorities on LROs, concluding the Defendant had not discharged the burden required to obtain dismissal or restraint.
Holding and Implications
APPLICATION TO DISMISS REFUSED
Holding: The court refused the Defendant's application to dismiss the proceedings and refused to make an Isaac Wunder-type / LRO against the Plaintiff.
Implications: The Plaintiff's amended pleadings were permitted; the court will set a timetable for delivery of the amended pleadings and will deal with costs at a later stage. No broader legal precedent was established by this decision; its effect is to allow the proceedings to continue for full determination.
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