1. The defendant seeks to have the plaintiff’s amended statement of claim struck out in its entirety. He seeks such an order pursuant to the provisions of 0. 19, r r. 27 and 28 of the Rules of the Superior Courts, 1986, and the inherent jurisdiction of the court.

2. Order 19, r. 27 reads as follows:-

3. Apart from these two rules, the court has an inherent jurisdiction to stay proceedings that are frivolous or vexatious or propound a claim which must fail. It is this inherent jurisdiction which has largely been relied upon by the defendant in this application.

4. The principles upon which the court exercises this jurisdiction have been considered in a number of cases. In Barry v. Buckley [1981] 306, Costello J. (as he then was) said at p. 308:-

5. The jurisdiction was again considered by Costello J. in D.K v. King [1994] 1 I.R. 166 where he repeated the principles enunciated by him in Barry v. Buckley. Having expressed the view that the plaintiff’s claims were neither frivolous nor vexatious, Costello J. went on to say at p. 171:-

6. His approach to this jurisdiction was considered by the Supreme Court in O’Neill v. Ryan (No. 1) [1993] I.L.R.M. 557. Blayney J., at p. 561, expressly approved the approach of Costello J. in D.K v. King as being correct.

7. In view of the fact that this inherent jurisdiction is relied on by the defendant, it is permissible for affidavit evidence to be adduced. A number of affidavits have been filed and I will consider their contents in due course. From the point of view of this application, however, it is conceded by Mr. McDowell on behalf of the defendant that I must assume

8. This approach necessarily means that, insofar as there may be conflict between matters averred to by the plaintiff and the defendant on their respective affidavits, such conflicts must be resolved in favour of the plaintiff. Adopting this approach, as I do, I now proceed to consider the application.

9. The plaintiff commenced these proceedings by the issue of a plenary summons on the 9th May, 1995. The general endorsement of claim claimed damages for breach of contract, negligent misrepresentation, fraudulent misrepresentation and a sum of £175,000. In addition, it sought a declaration that the plaintiff was entitled, as beneficial owner, to one half of the value of a cheque in the sum of £350,000 dated the 27th September, 1993, and drawn by Maxol Limited on the Ulster Bank at 2/4 Lower O’Connell Street in favour of Choppard International Limited. The endorsement of claim also sought a declaration that the defendant held the sum of £175,000 in trust for the plaintiff or, alternatively, a declaration that the plaintiff was entitled to such a proportion of the cheque as to the court seemed just.

10. That summons was followed by a statement of claim delivered on the 30th May, 1995, which prayed for the same reliefs.

11. The present motion was initiated on the 27th June, 1995, and thereafter affidavits were exchanged. One of the exhibits to an affidavit of the plaintiff sworn in July, 1995, consisted of an amended statement of claim. I permitted delivery of that amended statement of claim. This accords with the views expressed by McCarthy J. in Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425 where he said that he inclined to the view that if the statement of claim in an action admitted of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed. It is to this amended statement of claim that Mr. McDowell has directed his fire, contending that the plaintiff’s claim is not saved by it. In fact, he says that no part of the statement of claim should survive his attack.

12. In the light of this, I must set forth in its totality the amended statement of claim. It reads as follows:-

13. It is to be noted that the declaratory relief concerning the beneficial ownership of the £175,000 sought both in the originating summons and the original statement of claim has disappeared out of the amended statement of claim. This was no oversight. In the hearing before me, Mr.O’Loughlin, on behalf of the plaintiff, expressly disavowed any claim as to beneficial ownership of those monies. Consequently, the only reliefs which are now sought in the action arise at common law. No equitable relief is now claimed.

14. The plaintiff and defendant are both married but not to each other. They cohabited with each other as though they were man and wife between September, 1985, and May, 1993. It is common case that the dwelling house at No. 56 Castleknock Park was purchased in November, 1988, in the joint names of the plaintiff and defendant. In 1993, the defendant transferred his half share in that house to the plaintiff.

15. In May, 1993, the relationship between the plaintiff and the defendant broke down with the defendant being asked to leave home. This was because he was intermittently cohabiting with his wife.

16. Subsequently, the defendant was anxious to re-establish his relationship with the plaintiff. This occurred in September, 1993, and the defendant moved back in to Castleknock Park with the plaintiff.

17. In September, 1994, the relationship again broke down. Again, the defendant was requested to leave home and did so. These are matters of fact which are not in dispute between the parties and form the backdrop against which the statement of claim now falls to be examined.

18. The first relief which is sought in the amended statement of claim is damages for breach of contract. On an examination of the statement of claim, it appears to me that the only contract (apart from the mortgage on 56 Castleknock Park which is no longer relevant) which is pleaded is a twofold one. The first is an agreement to marry. The second is an agreement to live together as man and wife until such marriage would be possible. In consideration of that agreement, the plaintiff discontinued her business and lived as a full-time housewife and home-maker.

19. The defendant contends that this twofold claim in contract must fail.

20. As to the first, he relies upon the provisions of s. 2 of the Family Law Act, 1981, which abolished the action for breach of promise of marriage. In my view, that enactment is fatal to any claim which is asserted by the plaintiff to derive from the breach by the defendant of an agreement to marry her. Indeed, even before the enactment of the Act of 1981, at common law it had been held in England that a promise by a married person to marry one who knew that person to be already married was unenforceable as being against public policy (see Wilson v. Carnley [1908] 1 KB 729, Spiers v. Hunt [1908] 1 KB 720, Siveyer v. Allison [1935] 2 K.B. 403). In the instant case, both the plaintiff and the defendant at all times knew that they were each married to someone else. Even before the enactment of the Act of 1981, their agreement to marry each other would have been unenforceable as a matter of public policy. Subsequent to the Act of 1981, there can be, in my view, no doubt but that the defendant is correct when he says that this part of the plaintiffs claim must fail.

21. The second contractual arrangement alleged by the plaintiff is set forth at paragraph 8 of the amended statement of claim. It is that, pending marriage, she would “in the meantime, live with him as a wife might and, in particular, discontinue her own business and live at home as a full-time housewife and home-maker”. The defendant contends that an agreement to cohabit, whether pending a forthcoming marriage or not, cannot give rise to enforceable rights. This is so whether the parties agree to live together pending a dissolution of existing marriages or not. It is said that the enforcement of such agreements would be contrary to the public policy of this State. It is furthermore said that the present claim in attempting to enforce this agreement by means of seeking damages for its breach is not actionable as a matter of Irish law. It is furthermore said that the plaintiffs proceedings are, in effect, a claim for “palimony”.

22. This expression “palimony” was much used by Mr. McDowell in the course of argument but it was never defined nor was any authority opened on the topic. The Oxford English Dictionary defines it as a slang word of American origin formed by a blend of “pal” and “alimony” and denoting “compensation claimed by the deserted party after the separation of a couple living together out of wedlock”. That it is truly a slang term appears to be borne out by the fact that amongst the, admittedly relatively few, text books on American family law available to me, I fail to find a single instance of the word being used.

23. Historically, applications to seek enforcement of cohabitation contracts in the United States have been treated in much the same way as such claims in England. They were invariably rejected either on grounds of immorality or lack of consideration. Things changed somewhat with the decision of the Supreme Court of California in Marvin v. Marvin (1976) 18 Cal. 3d 660. That court concluded, inter alia :-

24. This is the case which appears to have spawned the expression palimony’.

25. Since the decision in Marvin v. Marvin, some State courts have been willing to find implied contracts where no express contract existed. Others have trenchantly refused to go down that path. For example, the New York Court of Appeal in Morone v. Morone (1980) 429 NYS 2d 592 said that:-

26. It seems, therefore, that insofar as the jurisdiction where this concept finds it genesis is concerned, the existence of such a claim is by no means universally accepted.

27. The position in England and Wales on the other hand appears to be crystal clear. In Windeler v. Whitehall [1990] 2 F.L.R. 505, Millett J. (as he then was) said:-

28. In my view, the law in this country is no different and, if anything, would lean more strongly against such a concept having regard to the special position of marriage under the Constitution.

29. Agreements by persons to cohabit have long been held to be unenforceable at common law as being injurious to morality and marriage. Mr. McDowell relied on the decision in Beaumont v. Reeve (1846) 8 Q.B. 483 in support of his contention that it would be contrary to public policy to permit the enforcement of the present contract. Whatever may have been the public policy in England in 1846 when that case was decided, this case must be decided upon the public policy of this State.

30. That is to be found in the first instance in the Constitution and, in particular, Article 41 thereof. In that Article, the State recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law. The State pledges itself to guard with special care the institution of marriage, on which the family is founded and protect it against attack.

31. In that case, the Supreme Court, per Walsh J., said it was:-

32. Given the special place of marriage and the family under the Irish Constitution, it appears to me that the public policy of this State ordains that non-marital cohabitation does not and cannot have the same constitutional status as marriage. Moreover, the State has pledged to guard with special care the institution of marriage. But does this mean that agreements, the consideration for which is cohabitation, are incapable of being enforced? In my view it does since otherwise the pledge on the part of the State, of which this Court is one organ, to guard with special care the institution of marriage would be much diluted. To permit an express cohabitation contract (such as is pleaded here) to be enforced would give it a similar status in law as a marriage contract. It did not have such a status prior to the coming into effect of the Constitution, rather such contracts were regarded as illegal and unenforceable as a matter of public policy. Far from enhancing the position at law of such contracts the Constitution requires marriage to be guarded with special care. In my view, this reinforces the existing common law doctrines concerning the non-enforceability of cohabitation contracts. I am therefore of opinion that, as a matter of public policy, such agreements cannot be enforced.

33. I am strengthened in this view by the fact that, notwithstanding the extensive reform of family law which has taken place in this country over the last 20 years, nowhere does one find any attempt on the part of the legislature to substantially enhance the legal position of, or to confer rights akin to those of married persons upon the parties to non-marital unions e.g. a right to maintenance. This absence of intervention on the part of the legislature suggests to me that it accepts that it would be contrary to public policy, as enunciated in the Constitution, to confer legal rights on persons in non-marital unions akin to those who are married.

34. In the present case, the amended statement of claim makes it clear that the consideration for the second contract was the living together of the plaintiff and the defendant with the plaintiff living with him “as a wife might” and “at home as a full-time housewife and home-maker”.

35. In my view, the contract contended for here is unenforceable as a matter of public policy. Whether one calls it palimony or not, it is not capable of enforcement in this jurisdiction. If the plaintiffs claim is truly a palimony one (which I doubt), I am of opinion that Irish law recognises neither the term nor the obligation to which it gives effect. Consequently, it must be struck out. If it is not a palimony claim, it is clearly an attempt to enforce a contract the consideration for which is wifely services being rendered on the part of a mistress. Such contracts were always regarded as illegal and unenforceable and remain so. A claim of this type arising out of such a relationship must, in my view, be struck out.

36. In coming to the conclusion above, I have not forgotten the two English authorities which were cited by Mr. O’Loughlin on behalf of the plaintiff. They were Eves v. Eves [1975] 1 WLR 1338 and Tanner v. Tanner [1975] 1 W.L.R. 1346. I do not think that these cases can be of assistance to the plaintiff.

37. Even if an implied contract were contended for, the consideration involved would still render it unenforceable on grounds of public policy.

38. I hold that the claims for damages for breach of contract must, as a matter of law, fail. They are struck out.

39. I turn now to consider the remaining claims in the statement of claim.

40. The plaintiff also claims damages, for negligent and fraudulent misrepresentation.

41. A claim to recover damages for misrepresentation which causes damage lies in the following circumstances:-

42. In the course of the hearing, Mr. O’Loughlin relied upon the House of Lords decision in Derry v. Peek (1889) 14 App Cas 337. He contended that he has an action against the defendant in deceit.

43. That decision regarded actual fraud as being an essential ingredient of the action in deceit. The essence of the action is dishonesty. A merely negligent misrepresentation will not suffice.

44. In order to sustain the common law action of deceit, the following facts must be established, i.e. they must be pleaded and proved:

45. I am of opinion that on the basis of the pleadings before me, these five criteria are met in at least one aspect of the plaintiff’s claim.

46. It is alleged (and I must assume that the plaintiff will prove) that the defendant represented to the plaintiff that she would become a director and shareholder in Choppard International Limited and would share in its profits. She contends that she discontinued her business on foot of that representation but the defendant did not arrange for her to become a director or a shareholder in that company nor did she share in its profits. That claim at least appears to me to be capable of being separated from the contractual arrangements alleged to have been made between the plaintiff and the defendant. Mr. McDowell contends that all of the representations which were made were intended to and did induce the plaintiff either to agree to marry the defendant or to cohabit with him as a wife might in the meantime. But under this heading, the plaintiff claims that not merely did she agree to live with the defendant as man and wife but also gave up her business with a view to becoming involved in his. That arrangement is pleaded as part of the cohabitation contract and, insofar as it is, cannot be pursued. But the allegation of misrepresentation stands separate and apart from such contract. It is an allegation of a tort. It can stand separate and apart from the contractual claim. Mr. McDowell contends that if I allow this claim to remain extant, that would be to permit the indirect enforcement of the contract. He says it would permit the plaintiff to arrive at the same situation of benefit simply by framing her action in deceit. No authority was cited to support Mr. McDowell’s contention that the tort claim must suffer the same fate as the contractual.

47. It is possible that the action of the plaintiff in abandoning her business may have been induced as a result of misrepresentations on the part of the defendant and insofar as that claim is advanced as an alleged tortious wrong, it appears to me that it must be permitted to proceed to trial. Whatever reservations I may have, I cannot at this juncture say that the plaintiffs claim in this regard must fail. That is the test which 1 must apply.

48. If the claim for fraudulent misrepresentation is permitted to go to trial, so also must the claim for negligent misrepresentation since that, in my view, is also made out on the pleadings. I cannot at this stage say that it must fail.

49. In the result, the plaintiff’s claim for damages for breach of contract will be struck out but the claim in respect of damages for misrepresentation will not.