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Judgment Title: Mulrooney v John Shee & Co. Solicitors and ors
Neutral Citation:  IESC 20
Supreme Court Record Number: 29/2012
High Court Record Number: 2011 386 P
Date of Delivery: 09/05/2013
Court: Supreme Court
Composition of Court: Denham C.J., Hardiman J., Clarke J.
Judgment by: Clarke J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 29/2012]
John Shee and Company Solicitors, Kieran Cleary, Sinead Cleary,
Oliver Ryan Purcell Solicitors, Lynch & Partner Solicitors,
Cian O’Carroll, Michael O’Brien, Cliona Cleary, Randall Hill,
David Humphries, Frank Quirke, Kevin Byrne, Jack Hickey,
David Kennedy, Victor Shee, David Shee, JJ Shelly,
Shee & Hawe Limited, Edward Malone, Glanbia Foods Society Limited, The Minister for Agriculture and Food, The Garda Commissioner,
The Garda Bureau of Fraud Investigation and
The Minister for Justice and Law Reform
1.2 Mr. Mulrooney lost the Circuit Court proceedings and damages were awarded against him. An appeal was brought to the High Court but before that case came to be heard, the proceedings were settled.
1.3 On the 17th January, 2011, these proceedings were issued. A statement of claim, dated the 15th March, 2011, was filed. Two separate motions were brought by various of the defendants seeking to have the proceedings dismissed on the basis that the statement of claim did not disclose a cause of action or that the proceedings were frivolous and vexatious. The two motions were heard together and Charleton J. made an order dismissing the proceedings. It is from that order that Mr. Mulrooney has appealed to this Court. Mr. Mulrooney has, at all times, represented himself in these proceedings although, as will become clear, he had the benefit of legal representation in the previous proceedings brought in the Circuit Court. It should also be noted that there was before the Court an appeal against the refusal of a discovery order sought by Mr. Mulrooney.
1.4 In order to fully understand the issues which were before this Court, it is important to set out, in some detail, the procedural history both of the previous proceedings in the Circuit Court and of these proceedings.
2. Procedural History
2.2 It is also important to note that, on the application of the Mulrooneys, a third party, being Shee & Hawe Auctioneers, was joined to those proceedings. Shee and Hawe Limited ("Shee and Hawe") are the 18th named defendants in these proceedings.
2.3 When the matter came to trial, the order of the Circuit Court records that the third party issue between the Mulrooneys, on the one hand, and Shee and Hawe, on the other hand, had been settled so that no order was required. The substantive proceedings between Mr. Malone and the Mulrooneys went ahead and the Circuit judge determined that the lease was for a period of five years. The Circuit judge concluded that it followed that the Mulrooneys were liable for the sums which would have fallen due in the fourth and fifth years of the lease which were measured in the amount of €12,436.82.
2.4 The Mulrooneys appealed that decision of the Circuit Court but prior to the appeal coming on for hearing, the proceedings were settled, on the 5th November, 2005, for €13,500 inclusive of costs. That sum was actually paid to Mr. Malone in due course.
2.5 Brief mention should also be made of the fact that William Mulrooney, acting in person, brought proceedings in the Circuit Court in 2008 arising out of much the same matters. Those proceedings were dismissed by order of the Circuit Court on the 11th November, 2008, on the basis that the civil bill failed to disclose a cause of action and that the proceedings were found to be frivolous and vexatious.
2.6 So far as Mr. Mulrooney is concerned nothing appears to have occurred of any legal consequence between the Circuit Court proceedings coming to an end in the latter part of 2005 and his issuing of these proceedings in 2011.
2.7 In addition to issuing these proceedings and serving a statement of claim, Mr. Mulrooney brought a motion, returnable on the 12th April, 2011, before the Master of the High Court in which he sought an order of discovery against John Shee and Company, the first named defendant, in respect of the lease. In a grounding affidavit sworn in support of that application Mr. Mulrooney makes reference to the fact that he had appointed forensic document experts in the United Kingdom, being dissatisfied with previous forensic investigations carried out by An Garda Síochána and in Northern Ireland. The Master refused to grant discovery and Mr. Mulrooney brought the matter before the High Court by motion returnable on the 30th May, 2011. It appears that the Master had refused to order discovery because the Master took the view that these proceedings could not be maintained as a result of the settlement of the previous proceedings in the Circuit Court. In his grounding affidavit in respect of the appeal from the Master’s refusal to order discovery, Mr. Mulrooney stated that he knew “that any case can be re-opened on the production of new evidence which is also supported by confirmation from Revenue that my allegations, including that of the Fraud where the Lease Document was altered, is correct”.
2.8 In addition, motions to dismiss were brought by various of the defendants. One such motion was brought by John Shee and Company, Victor Shee, David Shee, Shee and Hawe and Mr. Malone. That application was successful in that the proceedings against those five named defendants were struck out. Mr. Mulrooney has appealed against that order but only insofar as it relates to John Shee and Company, Shee and Hawe and Mr. Malone. A separate, but similar, motion was brought on behalf of other defendants. That motion was also successful but has not been appealed. It follows that this appeal only relates to the three defendants who successfully sought to have the proceedings dismissed but in respect of whose dismissal order this appeals lies. As the proceedings were dismissed there was, of course, no point in the trial judge considering whether he should direct discovery.
2.9 It follows that there are two issues before this court. The first is as to whether the trial judge was correct in dismissing Mr. Mulrooney’s claim, at least in so far as it relates to the three defendants in respect of whom this appeal is brought, being John Shee and Company, Shee and Hawe and Mr. Malone ("the continuing defendants"). In addition, the question of the appropriateness of ordering discovery is also before the court.
2.10 In order to more fully understand those issues, it is appropriate to say something about certain uncontested facts.
3. Uncontested Facts
3.2 It is clear, therefore, beyond any dispute that the question of the lease having being wrongfully altered from three to five years was squarely before the Circuit Court at the time when the Circuit proceedings were coming to trial. An order joining Shee and Hawe had been made and the issue of Shee and Hawe and/or others acting in conjunction with them, having unlawfully altered the lease document was squarely before the court.
3.3 It is against that background that the fact that the third party proceedings involving Shee and Hawe were ultimately settled must be judged. It is also against that background that the proceedings between Mr. Malone and the Mulrooneys were settled after the Mulrooneys had lost in the Circuit Court but while their appeal was pending.
3.4 It is also necessary to refer to the facts surrounding attempts made by Mr. Mulrooney to have the lease document in question forensically examined. For reasons which I hope will become clear, it is not necessary to analyse those attempts in great detail. The original document was made available to An Garda Síochána. The evidence currently available would appear to suggest that An Garda Síochána found no evidence of fraud. The original lease document was also made available to a Mr. Brian Craythorne, a questioned document examiner at Forensic Science Northern Ireland. Mr. Craythorne produced a report dated the 20th September, 2010. Mr. Craythorne expresses the view in that report that “all the evidence supports the proposition that the figure 5’s and the figure 2004 have not been altered and thus that the term was originally for 5 years and the end year was 2004”. Mr. Craythorne expressed the conclusion that he could find no evidence that the lease was anything other than for five years ending in 2004.
3.5 As noted earlier, Mr. Mulrooney was dissatisfied with the results of those two investigations and instructed English forensic experts (Ms. Margaret Webb and Mr. Michael Ansell). Neither of those English forensic experts had access to the original lease. Reports from both of those experts were exhibited in affidavits sworn by Mr. Mulrooney. The reports, to varying extents, canvass the possibility that there might have been changes made in the relevant portions of the lease but, quite understandably, both reports make clear that it would be necessary to have an opportunity to examine the original before reaching a definite conclusion.
3.6 Against the background of the procedural history and those facts, it is next necessary to refer to the judgment of the High Court.
4. The High Court Judgment
4.2 At paragraph 4 of his judgment, Charleton J said that he did at one particular point countenance the possibility of a re-examination of the original lease and the invocation of mediation proceedings. However, that option “became highly unattractive when I learnt that the original lease had at the request of the plaintiffs been already examined twice by two independent experts, as I have said, who concluded that there was nothing wrong with the lease and that there was no basis whatever for anyone to claim in the circumstances that there was any forgery.” He therefore dismissed the proceedings against the defendants on the basis that it did not disclose any cause of action.
5. The Grounds of Appeal
(b) no full report of the results of the investigation of the lease document by An Gárda Síochána has ever been made available;
(c) the reports of Ms. Webb and Mr. Ansell suggest the possibility of the document having been altered but, it is said that it would be necessary to have the original forensically examined in order for those experts to express a more considered view;
(d) it is said that Mr. Mulrooney was deprived of fair procedures by virtue of the failure of the trial judge to allow him to have the original lease considered by those experts.
5.3 It is next necessary to turn to the arguments which arose at the oral hearing.
6. The Oral Hearing
6.2 However, it does not, of course, follow that those Circuit Court proceedings were irrelevant to the issues which this Court now has to decide. The fact remains that Mr. Mulrooney was a party to proceedings in the Circuit Court in which the question of whether the lease had been unlawfully altered was specifically raised by him. Counsel for the continuing defendants did make the point in the course of the hearing that an attempt to go behind the settlement of the earlier Circuit Court proceedings was impermissible. That point, although not touched on by the trial judge in his judgment, was raised in the documents filed on behalf of the continuing defendants in their application to dismiss in the High Court.
6.3 In order to assist Mr. Mulrooney (who, spoke through his son, William Mulrooney), the court asked him what he wanted to say concerning the possibility that he might now be unable to raise questions concerning the alteration of the lease in the light of the fact that he had settled previous proceedings in which that same issue had been raised.
6.4 The answer provided was twofold. First, it was said that Mr. Mulrooney believed that he had been badly served by his then legal representatives. Second, it was said that the presence of an allegation of fraud allowed the matter to be reopened.
6.5 In the light of the case as it appeared from the notice of appeal, the written submissions of the parties and the oral argument as it developed at the hearing, it seems that this Court was required, potentially, to consider four questions viz:-
(b) whether the allegation of having been badly served by his legal advisers at the time would provide an answer to any difficulties that might arise as a result of issue (a);
(c) whether, by virtue of the fact that a claim in fraud is now brought, Mr. Mulrooney can be prevented, by virtue of the settlement of the previous Circuit Court proceedings, from pursuing this claim; and
(d) in the event that Mr. Mulrooney is, in the light of the answers to questions (a) to (c), prima facie entitled to pursue these proceedings, was the trial judge correct in dismissing the proceedings without giving Mr. Mulrooney an opportunity to have a further forensic examination of the lease document.
7.2 As the authors also point out, the rationale for the rule lies in two aspects of public policy, being the need for there to be an end to disputation and the desirability of parties being held to their bargains.
7.3 The basic position is, therefore, clear. Where a party settles proceedings then whatever cause of action was raised in those proceedings can no longer be the subject of litigation. A party has, by entering into an agreement to settle, given up their right to whatever claim might have been made in the proceedings in question.
7.4 It should be recalled that there were, in fact, two separate settlements which led to the ultimate disposal of the previous Circuit Court proceedings. The third party claim brought by the Mulrooneys against Shee and Hawe was, as the Circuit Court order noted, settled so that the claims arising in that third party issue were struck out. In the context of that third party issue, a specific claim had been made by the Mulrooneys to the effect that the lease had been unlawfully altered. Therefore, at the time settlement was reached, the allegation of unlawful altering of the document in question was already alive and before the court. Equally, if such unlawful altering could have been established, it would obviously have provided the Mulrooneys with a defence to the action brought against them by Mr. Malone, for in those circumstances the Mulrooneys could not be held to be bound by a document which they had signed in one form and which had been unlawfully altered.
7.5 Thus, the claim of unlawful altering was alive in the Circuit Court proceedings and would have been available, had it been established, both as against Shee and Hawe, as third parties, and against Mr. Malone as plaintiff. The only other party to this appeal is John Shee & Company, solicitors, who have privity with their client in that there is, in the words of Megarry V.-C. in Gleeson v. J. Wippell & Company Limited  1 W.L.R. 510 at 515 "a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party". It should be noted that a similar view was expressed by O'Donnell L.J. in Shaw v. Sloan  N.I. 393. Anything John Shee & Company did was done on behalf of their clients. There is no suggestion whatsoever that John Shee & Company did something independent of their clients as a separate wrongful act in their own interest. If the allegation of an unlawful alteration of the lease had been made out, then John Shee & Company could only be liable if they had been a party to the unlawful altering. Given that their client, Mr. Malone, stood over the five year lease period and sued asserting that the lease was for five years, then there could be no question of any separate wrongdoing on the part of John Shee & Company independent of the interests of their client.
7.6 It follows that all three of the continuing defendants either were parties to the Circuit Court proceedings or had the same interest as parties to those proceedings. It follows that, prima facie, the settlement of those proceedings must be taken to be an agreement on the part of Mr. Mulrooney that he would not again seek to litigate against those parties the allegation which he had made, in those proceedings, to the effect that the lease document had been unlawfully altered.
7.7 That leads to the second and third questions as to whether the reasons put forward by Mr. Mulrooney for seeking to go back on his settlement permit him so to do. It is important, at this stage, to note that the lawyers who represented Mr. Mulrooney in the Circuit Court proceedings were not the subject of any appeal to this Court. It also follows that Mr. Mulrooney's own lawyers were not represented at the appeal before this Court (because they were not parties to the appeal) and did not, therefore, have any opportunity to have their say on the circumstances which led to a settlement of the Circuit Court proceedings.
7.8 It would, in that context, be wholly wrong for this Court to express any view on the allegations which Mr. Mulrooney makes to the effect that he was not well advised. The fact remains that Mr. Mulrooney had the benefit of legal advice at the time of the relevant settlements and those with whom he was settling were entitled to assume that he was properly advised. In oral argument, Mr. Mulrooney told the Court, speaking through his son, that he had been advised at the relevant time that the allegation of fraud "was not a runner". This Court cannot comment on whether that advice was given or whether, if it was given, the general circumstances and context in which it was given made it good or bad advice. The fact remains that Mr. Mulrooney obtained advice and acted on it in settling the case. If he has any complaint arising out of the advice which he was given (and I would wish to make it clear that no such finding is made), then that is a complaint which he has against his own lawyers and it does not afford him any legitimate basis for seeking to reopen legal issues which he has previously settled. The parties with whom he settled are entitled to take him at his word that the proceedings are settled and are not to be reopened.
7.9 The second issue concerns fraud. It is true that there are circumstances in which a court will allow a judgment or settlement which is procured by fraud to be set aside so that the underlying cause of action can be litigated. However, the problem which Mr. Mulrooney faces in this case is that the fraud which he alleges now is the same fraud which he alleged in the Circuit Court proceedings. There is no reason in principle why proceedings alleging fraud can not be settled in exactly the same way as any other type of proceedings. The public policy which favours giving effect to settlements and holding parties to their word when they have settled applies just as much in the case of an allegation of unlawful altering of a document as it does in any other type of litigation.
7.10 If there was now a different allegation of fraud which was said to have induced the settlement of the Circuit Court proceedings then the situation might be different. However, Mr. Mulrooney was aware of the allegation of unlawful altering at the time of the Circuit Court proceedings. It was in fact he who had made the allegation. Having made that allegation he thereafter settled the proceedings. He must, therefore, be taken to have settled proceedings including the allegation of unlawful altering, for that allegation was squarely before the court at the time when he entered into the settlement. If Mr. Mulrooney is, as all of the legal authorities make clear he must, to be kept to his word in the settlement, then his word involves him agreeing by his settlement not to re-litigate the allegation of unlawful altering. It follows that Mr. Mulrooney is no longer in a position to attempt to re-litigate that very same allegation of unlawful altering which he has long since settled.
7.11 It is also appropriate to note that, in the course of argument, Mr. Mulrooney placed emphasis on the fact that there might now be new evidence in the sense of the possibility that one or other or both of the English forensic experts might, were they to be given access to the original of the lease document, be able to come up with a definitive view which might support the allegation of unlawful altering. In that context, it does need to be emphasised that the mere fact that new evidence is, or may, be available does not, of itself, justify reopening proceedings which have come to an end. The principle of legal certainty requires that, in the absence of significant and exceptional circumstances in accordance with established case law, proceedings once brought to an end cannot be reopened. It is true that there are limited circumstances in which an appeal court, such as this Court, may admit new evidence which could have a bearing on whether the decision under appeal was correct. However, even in those circumstances a necessary proof is that the evidence could not, with reasonable diligence, have been obtained before the trial giving rise to the judgment under appeal. In the case of issue estoppel (whereby a party is bound by the result of issues decided in previous proceedings) and where a party seeks to re-open a relevant issue, it may be possible for the court to consider further material but only, as pointed out by O'Hanlon J. in Kelly v. Ireland,  I.L.R.M. 318, where credible and vital evidence becomes available and where the evidence concerned "could not, by the exercise of reasonable diligence, have been made available at the previous hearing". In that regard, O'Hanlon J. was following the test articulated by Goff L.J. in McIlkenny v. Chief Constable of the West Midlands  Q.B. 283.
7.12 This is not, of course, a case of res judicata or issue estoppel. These proceedings were settled and did not come to an ultimate judgment by a court of competent jurisdiction. However, the same overall principle applies. To whatever extent it might be open to a party to go back on a settlement reached because of the availability of fresh evidence (and the circumstances in which such a course of action could be adopted, if it is possible at all, would, undoubtedly, be extremely limited), it could never be open to a party to seek to rely on the availability of fresh evidence which could, with reasonable diligence, have been made available at a time when a previous action involving the same allegation came to a settlement. It seems to me that the discovery of fresh evidence relevant to a case which has settled could never be a ground for seeking to reopen the case if the party, at the time of the settlement, could, with reasonable diligence, have obtained the evidence in question. I should emphasise that it does not follow that, even if it could be established that the evidence was genuinely new in the sense that it could not have been obtained with reasonable diligence at the time in question, a settled case can be reopened. It would be necessary that the case could be brought within the established jurisprudence concerning the circumstances in which issues once settled can be re-litigated. The point which I seek to emphasise at this stage in this judgment is that the courts will never have regard to fresh evidence which could have been earlier obtained by reasonable diligence.
7.13 The original of the lease was, of course, available, if required, at the time of the Circuit Court proceedings. An application could have been made to have that lease made available to an expert of Mr. Mulrooney's choosing. For whatever reason it was decided not to go down the road of having the lease examined forensically at that stage. However, Mr. Mulrooney nonetheless had made an allegation of unlawful altering.
7.14 Any evidence which might now be obtained as to unlawful altering would clearly be evidence which could just as easily have been obtained at the time when Mr. Mulrooney made his allegation of unlawful altering in the Circuit Court proceedings. Having chosen to settle those proceedings, with that allegation in being, and without having sought then to have the document forensically examined, it is now far too late to seek to raise the issue again with the benefit of forensic evidence.
7.15 The time to have obtained the forensic examination which Mr. Mulrooney now seeks is when he first made the allegation of unlawful altering in the context of the Circuit Court proceedings. Having failed to do it then and having settled those proceedings, he has now lost the right to seek to re-litigate the same question of unlawful altering which he has already settled. He is, in substance, asking not to be taken at his word when he settled those proceedings. The law does not allow him to depart from his word. He is bound by the settlement. The settlement binds him not to seek to re-litigate the issues which were then before the Circuit Court. Those issues clearly included the allegation of unlawful altering. Mr. Mulrooney is precluded from now seeking to make that allegation by virtue of his previous settlement of the proceedings and the trial judge was, therefore, correct to dismiss the proceedings as being an abuse of process.
7.16 Given that Mr. Mulrooney is not, for the reasons set out, entitled to bring an allegation of unlawful altering, it follows that there would be no point in directing that he have an opportunity to have the document forensically examined. It follows that it is unnecessary to consider whether, if circumstances had been otherwise and Mr. Mulrooney were entitled to pursue this case, he would be entitled to have the document in question forensically examined.