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Martin v Martin and Ors (Approved)
Smart Summary
Factual and Procedural Background
This is an application by the First Named Defendant to dismiss proceedings under O.19, r.28 on the grounds that the claim discloses no reasonable cause of action, is an abuse of process, is bound to fail and/or has no reasonable chance of success. The Plaintiff issued a plenary summons on 29 May 2024 and filed a statement of claim on 9 August 2024. The Plaintiff alleges that he and the First Named Defendant are co‑owners as tenants in common of a commercial property ("the Property") and each own a 50% share, that he has been excluded from the Property, and that the Second Named Defendant and the Government Department assert entitlements to possession on contractual bases. The Plaintiff seeks declarations of ownership, injunctive reliefs, damages, a statutory partition and an order for sale and distribution.
The First Named Defendant's defence (filed 17 July 2025) pleads that he is the sole owner of the Property pursuant to an agreement dissolving the partnership between him and the Plaintiff. Both parties filed extensive affidavits and documentary exhibits; the court records indicate significant factual dispute about whether any binding dissolution/partition agreement was executed and about statements the Plaintiff made to state agencies.
Legal Issues Presented
- Whether the First Named Defendant's application to dismiss the proceedings pursuant to O.19, r.28 should be granted.
- Whether statements by the Plaintiff to state bodies (as alleged) amount to conduct that bars equitable relief (the "unclean hands" / ex turpi causa principle) such that dismissal is appropriate at this interlocutory stage.
- Whether, at this pre‑trial stage, the Court can or should conclude that no stateable case exists given the documentary and affidavit material before it, and whether fairness/fair procedure considerations require denial of dismissal.
Arguments of the Parties
First Named Defendant's Arguments
- The First Named Defendant says the partnership was dissolved by agreement and the Plaintiff's interest in the Property was transferred by that agreement, making the Plaintiff's claim bound to fail.
- The First Named Defendant relies on the Plaintiff's written statements to state bodies (including a statutory declaration) as evidence that the Plaintiff accepted the transfer; he submits the Plaintiff comes with unclean hands and that ex turpi causa prevents equitable relief.
- The First Named Defendant contends that the material before the court establishes that dismissal is appropriate under O.19, r.28.
Plaintiff's Arguments
- The Plaintiff disputes any binding, executed agreement to transfer his interest and says the draft agreements changed over time and were never signed.
- The Plaintiff explains his statements to state bodies as made in the mistaken belief that a negotiated split would occur and argues that dismissal is inappropriate at this stage prior to discovery, oral evidence and cross‑examination.
- The Plaintiff relies on established principles governing interlocutory dismissal applications (burden on the applicant, limited review, resolving disputes in favour of the plaintiff, and the requirement only to show a stateable case).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Quinn v IBRC [2016] 1 IR 1 |
That courts will not enforce contracts tainted by illegality; ex turpi causa bars enforcement of unlawful transactions. |
The Court acknowledged the principle but distinguished it: no illegality was pleaded in respect of the Plaintiff's registration as co‑owner and the Court found the Plaintiff's statements to state bodies insufficient, at this interlocutory stage, to invoke that principle to dismiss the entire claim. |
| Tinsley v Milligan [1994] 1 AC 340 |
Referenced (via Quinn) in relation to the minority judgment relied on about unenforceability of unlawful agreements. |
Noted by the Court as part of the authority cited for the general principle that unlawful contracts are unenforceable; not applied to conclude dismissal at this stage. |
| Strategic Land Investments Ltd v Kenny Galway Ltd [2025] IECA 65 |
Illustrates denial of equitable interlocutory relief where plaintiff failed to explain omission to disclose material developments to the court. |
The Court distinguished that decision because the Plaintiff here provided an explanation and because the present application seeks dismissal of the entire proceedings rather than interlocutory relief. |
| English v O'Driscoll [2019] IECA 153 |
Distinction between actions seeking enforcement of potentially illegal contracts and other proceedings (e.g. negligence); emphasis on fair procedures and the need for conclusions about fraud/illegality to be based on trial evidence. |
The Court relied on this authority to emphasise that allegations of wrongdoing raised on affidavit do not substitute for trial evidence and that fairness requires resolution at trial with opportunity to respond. |
| O'Longain v Burke [2025] IECA 148 |
Holds that unclean hands may not deprive a plaintiff of equitable relief where fundamental unfairness would result from denial of relief. |
The Court applied this authority to support the view that misconduct alone does not automatically justify dismissing equitable claims at interlocutory stage where fair procedures and potential unfairness are engaged. |
| McAndrew v Salthill |
Identifies that the burden of proof in an interlocutory dismissal application is on the applicant. |
The Court accepted the principle and treated the First Named Defendant as bearing the burden of proof for dismissal. |
| Salthill |
That the jurisdiction to dismiss should be exercised sparingly. |
The Court applied this proposition in concluding dismissal should not be readily granted at this stage. |
| O'Malley and Keohane |
The Court's review of evidence and merits on dismissal is very limited. |
Relied upon to limit the Court's role on this interlocutory application. |
| Keohane |
That disputed oral evidence cannot be relied upon by the applicant and that plaintiff need only establish a stateable case; evidence which if accepted at trial might lead to success is sufficient. |
Applied to find that the Plaintiff's evidence could not be displaced at this stage by the First Named Defendant's conflicting account. |
| Kennedy |
Conflicts of fact must be resolved in favour of the plaintiff on an interlocutory dismissal application. |
The Court followed this approach in assessing the affidavit conflicts. |
| Supermacs |
The Court must be confident that proceedings will fail notwithstanding what may arise on discovery or at trial before dismissing. |
The Court found it could not be so confident here and therefore refused dismissal. |
Court's Reasoning and Analysis
The Court conducted a limited interlocutory review of extensive affidavit and documentary material and identified significant, material disputes of fact about whether a binding dissolution/partition agreement was executed. The Court noted:
- The legal threshold for dismissal under O.19, r.28 is high: the applicant bears the burden and dismissal should be sparingly exercised; only a limited review of the merits is permissible; conflicts of fact are resolved for the Plaintiff; and only a stateable case need be shown by the Plaintiff.
- Although the First Named Defendant relies on the Plaintiff's statements to two state agencies and invoked equitable doctrines (unclean hands / ex turpi causa), no illegality is pleaded in relation to the Plaintiff's registered status and the Court could not conclude, on the affidavit material alone, that equities required dismissal.
- Fair procedures considerations informed the Court's approach: allegations on affidavit do not substitute for evidence given at trial, cross‑examination or discovery (including the Plaintiff's claim to be missing documents due to a theft and his contention that the First Named Defendant may hold copies).
- Authorities on unclean hands and cases refusing interlocutory relief for lack of candour were considered, but the Court distinguished those authorities on their facts (noting explanations provided by the Plaintiff and the more dispositive nature of the present application compared with interlocutory injunction applications).
- Given the factual disputes, documentary evidence of multiple draft agreements, and the availability of trial processes to test allegations, the Court concluded it was not satisfied the proceedings would inevitably fail and refused the dismissal application.
Holding and Implications
APPLICATION TO DISMISS REFUSED
Direct effect: The Plaintiff's proceedings against the First Named Defendant will continue to trial; the Plaintiff's claims for declarations, equitable relief, damages and statutory orders remain live. The Court indicated that even if equitable relief might ultimately be restricted, other remedies (damages, statutory partition or sale, and the Plaintiff's registration status) would remain for consideration at trial.
The Court gave an indicative view on costs: the Plaintiff is entitled to the costs of the dismissal application to be adjudicated in default of agreement under the Legal Services Regulation Act 2015, but execution of those costs is to be stayed pending the outcome of the proceedings; the Court listed a short further hearing date for submissions on costs.
No new legal principle was established; the decision applies existing interlocutory principles to the facts before the Court and emphasizes the importance of fair procedures and trial testing of allegations before dismissing an action.
Judge: Judge Bolger
Counsel recorded in the opinion (anonymized): Attorney Flynn (for the Plaintiff); Attorney Dunleavy and Attorney O'Sullivan (for the First Named Defendant).
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