High Court of Ireland Decisions

[2024] IEHC 203

THE HIGH COURT

RECORD NO. 2022/4188P

 

 

 

BETWEEN

JUERG VON GEITZ 

PLAINTIFF

-AND-

 

KIERAN KELLY, PATRICK FLYNN, JAMES DUGGAN, ALAN O'DRISCOLL, DAVID CURRAN, EOIN CUNNEEN, GAVIN LAWLOR, JULIAN CUNNINGHAM, DAVID RYAN, FLYNN O'DRISCOLL LLP AND WHITNEY MOORE LLP 

DEFENDANTS 

 

THE HIGH COURT

RECORD NO. 2019/7740P

 

 

 

BETWEEN

JUERG VON GEITZ 

PLAINTIFF

-AND-

 

MARK JAMES ROBERTSON, PADRAIC O'GIOLLAIN, HOTTINGER PRIVATE OFFICE (U.K.) LIMITED, HOTTINGER INVESTMENT MANAGEMENT LIMITED AND DAVID GEARY  

DEFENDANTS 

 

JUDGMENT of Mr. Justice Heslin delivered on the 4^th day of April 2025

Introduction

1.            This judgement concerns whether or not to dismiss legal proceedings brought by the plaintiff in 2019 and 2022, respectively. Regarding the law, this decision breaks no new ground. Rather, the outcome involves the application of well-established legal principles to the relevant facts. The facts are, however, far from straightforward and span a period of almost 15 years. This has contributed to a lengthy judgement. To explain the relevant legal provisions and principles for the benefit of the plaintiff, who represents himself, has also made for a long judgment.

 

The 2019 proceedings

2.            On 4 October 2019, the plaintiff issued proceedings entitled Juerg von Geitz v Mark James Robertson, Padraic O'Giollain, Hottinger Private Office Limited, Hottinger Investment Management Limited and David Geary bearing record no. 2019/7740P (the "2019 proceedings"). In the 2019 proceedings, the plaintiff claims damages pursuant to s. 13 of the Protected Disclosures Act 2014 ("the 2014 Act") in relation to 'detriment' allegedly suffered by him as a consequence of making what he claims were protected disclosures.  

Defendants' motion to dismiss the 2019 proceedings

3.            On 15 October 2024 Messrs. Flynn O'Driscoll LLP, solicitors for the defendants issued a motion to dismiss the 2019 Proceedings. The relief sought can be summarised as follows: (i) an order pursuant to O.19, r. 28 of the RSC striking out the proceedings as disclosing no reasonable cause of action and or as being frivolous and vexatious; (ii) striking out the proceedings under the court's inherent jurisdiction; (iii) dismissing the proceedings as an abuse of process; and (iv) an 'Isaac Wunder' order restraining the plaintiff from instituting any further proceedings against the five named defendants, without leave of this court.

 

The 2022 proceedings

4.            On 8 August 2022, the plaintiff commenced proceedings entitled Juerg von Geitz v. Kieran Kelly, Patrick Flynn, James Duggan, Alan O'Driscoll, David Curran, Eoin Cunneen, Gavin Lawlor, Julian Cunningham, David Ryan, Flynn O'Driscoll LLP and Whitney Moore, bearing record number 2022/4188P (the "2022 proceedings"). In the 2022 proceedings the plaintiff claims damages for "unlawful means conspiracy, professional negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interests and duty of care".

 

11^th Defendant's motion to dismiss the 2022 proceedings

5.            On 30 September 2024, Messrs. DWF (Ireland) LLP, solicitors for the eleventh named defendant in the 2022 proceedings issued a motion seeking (i) dismissal of same on the basis that the plaintiff does not have locus standi to maintain them, owing to the rule in Foss v Harbottle [1843] 2 Hare 461 or a declaration that the plaintiff does not have locus standi; (ii) an order pursuant to this Court's inherent jurisdiction striking out the plaintiff's claim for failure to obtain a supportive expert report in proceedings involving allegations of professional negligence; and (iii) an order pursuant to O. 19, r, 27 and/or r. 28 dismissing the proceedings as having no reasonable prospect of success, failing to disclose a reasonable cause of action, being frivolous and vexatious and/or an abuse of process.

 

1^st to 10^th Defendants' motion to dismiss the 2022 proceedings

6.            On 15 October 2024 Messrs, Flynn O'Driscoll LLP issued a motion on behalf of the first to tenth named defendants to dismiss the 2022 proceedings, seeking: (i) an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts ("RSC") striking out the proceedings as disclosing no reasonable cause of action and/or as being frivolous and vexatious; (ii) an order under the court's inherent jurisdiction striking out the proceedings as being frivolous and vexatious and bound to fail; (iii) an order striking out the proceedings as constituting an abuse of process; and (iv) an 'Isaac Wunder' order restraining the plaintiff from instituting any further proceedings against the first to tenth named defendants without leave of the court.

 

Representation

7.            Mr. Compton acted for all defendants in the application to dismiss the 2019 proceedings. Mr. Compton S.C. represented the first to tenth defendants in the motion to dismiss the 2022 proceedings, whereas Mr. O'Donnell S.C. represented the eleventh defendant. The plaintiff represented himself in opposing both motions.

 

Legal principles

8.            The plaintiff is a businessman not a lawyer. Therefore, it seems appropriate to begin by explaining, for his benefit, a number of legal principles which are of fundamental relevance to determining the present applications.

 

The rule in Foss v Harbottle

9.            Put simply, the rule in Foss v Harbottle, is that only a company can maintain proceedings in relation to wrongs done to it. The principal exceptions to the rule are the right of an individual shareholder to bring proceedings in respect of an act done on behalf of the company which is illegal or beyond the company's powers i.e. ultra vires; or where there is shareholder oppression, e.g. where the action complained of, although lawful and intra vires, is a fraudulent use of the company's powers by the controlling majority to the detriment of the minority.   

 

Inherent jurisdiction

10.         The existence of and rationale for the court's inherent jurisdiction to dismiss proceedings was articulated in Barry v Buckley [1981] IR 306, wherein Costello J. made clear that it is a jurisdiction which "...exists to ensure that an abuse of the process of the courts does not take place."  Over three decades later, in Keohane v Hynes [2014] IESC 66, Clarke J. (as he then was) stated (at 6.5):-

 

"As pointed out in many of the authorities... the underlying basis of the jurisdiction to dismiss as being bound to fail stems from the court's inherent entitlement to prevent an abuse of process. Bringing a case which is bound to fail is an abuse of process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to prevent that abuse of process by dismissing the proceedings."

 

Order 19 RSC

11.         In the recent decision in Ooi v Ireland & Ors. [2024] IEHC 663, Cahill J. addressed the impact of S.I. 456/2023 which amended Ord. 19, rules. 27 and 28 of the Rules of the Superior Courts ("RSC"), stating:-

 

"49.      Prior to 22 September 2023, there were two distinct bases on which a court could strike out claims (or parts of claims) at a preliminary stage. One was contained in O.19, rr 27 and 28 RSC, the second was pursuant to the inherent jurisdiction of the Court. There were some differences between the two jurisdictional bases, including that the former was confined to an analysis of the pleadings, whereas the inherent jurisdiction of the court allowed a broader consideration of the issues and affidavit evidence. 

50.       The jurisdiction to strike out proceedings at a preliminary stage is now largely if not entirely codified in the new formulation of O. 19, r. 28, which provides:

"The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

i.              discloses no reasonable cause of action, or

ii.             amounts to an abuse of the process of the Court, or

iii.            is bound to fail, or

iv.           has no reasonable chance of succeeding."

51.       As noted by Simons J in O'Malley v. National Standards Authority of Ireland [2024] IEHC 500 ("O'Malley v. NSAI") at [7], 

"The amendment to Order 19, rule 28 has the practical effect of eroding the previous distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to (i) Order 19 of the Rules of the Superior Courts, and (ii) the court's inherent jurisdiction. Nevertheless the earlier case law continues to have a relevance."

 

12.         In Heaphy v Governor and Company of the Bank of Ireland [2024] IEHC 332, Mulcahy J. (from para. 39 to 45 inclusive) analysed the principles applicable to a motion to dismiss in light of the amendment to O. 19 and it is those principles which have guided me in the present applications. As noted in para. 41 of Heaphy,

 

"...the removal of the reference to proceedings being 'frivolous and vexatious' do not appear to have any significance... Accordingly, the principles governing the court's jurisdiction to strike out proceedings pursuant to O. 19, r. 28 of the Rules of the Superior Court and/or the inherent jurisdiction remain well settled."

 

13.         Just as Mulcahy J. did (at para. 42) in Heaphy, it is helpful, particularly for the benefit of the plaintiff who represents himself, to set out the guidance given by the Court of Appeal in Scotchstone Capital Fund Limited v Ireland [2022] IECA 23 ("Scotchstone"). At para. 290, the Court (Donnelly J., Faherty J. and Ni Raifeartaigh J.) summarised the principles applicable to applications of the present type, as follows:-

 

"290. From the foregoing, the underlying principles in relation to the exercise of this jurisdiction are clear. Although not articulated in the precise manner and order that the appellants' sought, they were likewise in substance clear to the motion judge. Some of the principles, in particular the extent to which a court can engage with the facts, are disputed by the appellants. Without meaning to disparage the undoubted depth of the legal research undertaken by the second appellant who led the submissions on the part of the appellants, we consider that the relevant principles are perhaps not fully understood by the appellants. In essence these are:

a)  An application for a strike out of a plaintiff's claim on the basis of the inherent jurisdiction is not a substitute for summary disposal of a case;

b)  The jurisdiction exists, not to prevent hardship to a defendant from defending a case, but to prevent against an abuse of process of the court by the plaintiff, e.g. causing a manifest injustice to the defendant in being asked to defend a case which is bound to fail;

c)  The burden of proof is on the defendant;

d)  There is a degree of overlap between bound to fail jurisprudence and cases which are held to be frivolous and vexatious. However, the latter are cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success;

e)  The standard of proof is on the defendant/respondent to show that the claim is bound to fail or frivolous or vexatious;

f)  Bound to fail may be described inter alia, as devoid of merit or a claim that clearly cannot succeed;

g)  Frivolous and vexatious must be understood in their legal context as claims which are, inter alia, futile, misconceived, hopeless;

h)  The threshold for the plaintiff successfully to defend such a motion is not a prima facie case but a stateable case;

i)  It is a jurisdiction only to be used sparingly, in clear cut cases and where there is no basis in law or in fact for the case to succeed;

j)  The court must accept that the facts as pleaded by the plaintiff in considering whether an Order pursuant to O.19, r. 28 may be made but in the exercise of its inherent jurisdiction the court can to some extent look at and assess the factual basis of the plaintiff's claim;

k)  Where the legal or documentary issues are clear cut it may be safe for a court to reach a conclusion on a motion to dismiss;

l)  Even where a plaintiff makes a large number of points, each clearly unstateable, it may be still safe to dismiss; and

m)  In some cases, even if the factual disputes are clear cut or may be easily resolved, the legal issues or questions concerning the proper interpretation of documentation may be so complex that they are unsuited to resolution within the confines of a motion to dismiss."

 

14.         Consistent with the above principles, when viewing the plaintiff's claim through the 'lens' of O.19 r. 28, this court accepts the facts as pleaded by the plaintiff and takes his claims at their 'height'.  From the perspective of this Court's inherent jurisdiction, the analysis of the factual basis of the plaintiff's claim is to see whether any credible basis exists for suggesting that the facts are as asserted by the plaintiff. 

 

Abuse

15.         This latter approach reflects the dicta of Clarke J. (as he then was) in Lopes v Minister for Justice, Equality and Law Reform [2014] 2 IR 301 wherein the Supreme Court stated (at p. 309):-

 

"17.      The distinction between the two types of application is, therefore, clear. An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v Buckley ([1981] IR 306), an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC.  If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the Court to prevent abuse can be invoked."

 

 

Vexatious

16.         Recently, in O'Connor v Legal Aid Board & Ors. [2024] IEHC 531, Kennedy J. identified, with reliance on earlier authority, a number of factors which may indicate that a claim is vexatious.  At para. 19, the learned judge stated: -

 

"A number of factors may indicate that a claim is vexatious. Riordan v Ireland (No. 5) [2001] 4 IR 463 ("Riordan") and Ewing v Ireland [2013] IESC 44, show that these include:

a. the bringing of one or more actions to determine issues already determined by another court;

b. where it is obvious that an action could not succeed, if an action could lead to no possible good, or if no reasonable person could expect to obtain relief;

c. where an action is brought for an improper purpose, such as harassment and/or oppression of other parties by various proceedings brought for purposes other than the realisation of legitimate rights;

d. where issues tend to be "rolled forward" into subsequent actions and repeated or supplemented (often with actions brought against legal professionals who acted in previous iterations of proceedings);

e. where the party instituting proceedings has failed to comply with costs orders in previous proceedings; and

f. where the respondent persistently, and unsuccessfully, appeals judicial decisions."

 

Isaac Wunder order

17.         In circumstances where the defendants in both applications seek 'Isaac Wunder' orders, it is also necessary, for the benefit of the plaintiff, to explain what is meant by the term as well as the principles relevant to an application for same.  

 

18.         Briefly put, where a litigant is found to have brought proceedings against a party which constitute an abuse of process, that litigant is required to apply to court for prior consent before any further proceedings can be issued against the same party. The right of access to court enjoys protection under the Constitution, as well as under article 6 (1) of the European Convention on Human Rights. That being so, the making of an Isaac Wunder order is an exceptional step which a court should not take lightly. The relevant considerations were set out by the Court of Appeal (Whelan J.) at para. 132 in Kearney v. Bank of Scotland & Anor. [2020] IECA 92 ("Kearney") as follows:-

"132. Isaac Wunder orders now form part of the panoply of the courts' inherent powers to regulate their own process. In light of the constitutional protection of the right of access to the courts, such orders should be deployed sparingly and only be made where a clear case has been made out that demonstrates the necessity of the making of the orders in the circumstances:

i. Regard can be had by the court to the history of litigation between the parties or other parties connected with them in relation to common issues.

 

ii. Regard can be had also to the nature of allegations advanced and in particular where scurrilous or outrageous statements are asserted including fraud against a party to litigation or then legal representatives or other professionals connected with the other party to the litigation.

 

iii. The court ought to be satisfied that there are good grounds for believing that there will be further proceedings instituted by a claimant before an Isaac Wunder type order restraining the prosecution of litigation or the institution of fresh litigation is made.

 

iv. Regard may be had to the issue of costs and the conduct of the litigant in question with regard to the payment and discharge of costs orders incurred up to the date of the making of the order by defendants and indeed by past defendants in applications connected with the issues the subject matter of the litigation.

 

v. The balancing exercise between the competing rights of the parties is to be carried out with due regard to the constitutional rights of a litigant and in general no legitimate claim brought by a plaintiff ought to be precluded from being heard and determined in a court of competent jurisdiction save in exceptional circumstances.

 

vi. It is not the function of the courts to protect a litigant from his own insatiable appetite for litigation and an Isaac Wunder type order is intended to operate preferably as an early stage compulsory filter, necessitated by the interests of the common good and the need to ensure that limited court resources are available to those who require same most and not dissipated and for the purposes of saving money and time for all parties and for the court.

 

vii. Such orders should provide a delimitation on access to the court only to the extent necessitated in the interests of the common good.

 

viii. Regard should be had to the fact that the right of access to the courts to determine a genuine and serious dispute about the existence of a right or interest, subject to limitations clearly defined in the jurisprudence and by statute, is constitutionally protected, was enshrined in clause 40 of Magna Carta of 1215 and is incorporated into the European Convention on Human by article 6, to which the courts have regard in the administration of justice in this jurisdiction since the coming into operation of the European Convention on Human Rights Act 2003.  

 

ix. The courts should be vigilant in regard to making such orders in circumstances where a litigant is unrepresented and may not be in a position to properly articulate his interests in maintaining access to the courts. Where possible the litigant ought to be forewarned of an intended application for an Isaac Wunder type order. In the instant case it is noteworthy that the trial judge afforded the appellant the option of giving an undertaking to refrain from taking further proceedings which he declined.

 

x. Any power which a court may have to prevent, restrain or delimit a party from commencing or pursuing legal proceedings must be regarded as exceptional. It appears that inferior courts do not have such inherent power to prevent a party from initiating or pursuing proceedings at any level.

 

xi. An Isaac Wunder order may have serious implications for the party against whom it is made. It potentially stigmatises such a litigant by branding her or him as, in effect, "vexatious" and this may present a risk of inherent bias in the event that a fresh application is made for leave to institute proceedings in respect of the subject matter of the order or to set aside a stay granted in litigation.

 

xii. Where a strike out order can be made or an order dismissing litigation whether as an abuse of process or pursuant to the inherent jurisdiction of the court or pursuant to the provisions of O. 19, r. 28, same is to be preferred and a clear and compelling case must be identified as to why, in addition, an Isaac Wunder type order is necessitated by the party seeking it."

These are the principles which have guided this court in the approach to the applications for Isaac Wunder orders.

 

Background

19.         Having referred to relevant legal principles, I now turn to the relevant background, because it is not possible to deal with the present applications without understanding what preceded them. The history is far from straightforward and involves a large cast of dramatis personae, human and corporate. However, the ultimate source of plaintiff's complaints concern an unsuccessful attempt, almost a decade and a half ago, to monetise connections to wealthy individuals. To understand the key players and the methodology by which the plaintiff hoped to achieve this end, a useful starting point is the statement of claim in proceedings entitled Balthazar Holdings Ltd and Waldeck Ltd -v- Archimedes Private office Limited, Banque Privee Edmond de Rothschild and Mark Robertson bearing record number 2012/13086P (the "2012 proceedings").

 

The 2022 proceedings

20.         The 2012 proceedings were issued on the instructions of Mr. von Geitz, by Messrs. Whitney Moore solicitors and the plaintiffs' account of the relevant history can be seen from the following pleas in the statement of claim, delivered on 21 December 2012:

 

"6. In or about November 2009, Mr von Geitz and Mr Robertson were introduced by a mutual acquaintance, at which time Mr Robertson was an employee of a private bank, namely Coutts international in Geneva (hereinafter "Coutts"). Following the introduction, Mr. von Geitz introduced valuable Irish clients to Coutts and in particular two high net worth individuals, who had a combined asset under management of €50 million.

 

7.Following the success of these introductions, Mr Robertson suggested that Mr. von Geitz become a referring agent for Coutts, introducing high network individuals and families from the Irish market. A draft contract was agreed with commission payments due to Mr von Geitz for clients introduced to Coutts (hereinafter "the Coutts contract"). Before the Coutts contract was signed, in or about September 2010, Mr Robertson advised Mr. von Geitz of his intention to leave Coutts and he recommended that Mr von Geitz move his clients to the Rothschild Bank. Mr Robertson represented to Mr von Geitz that he should not sign the Coutts contract as this would complicate the transfer of the clients introduced by Mr von Geitz to the Rothschild bank. In reliance upon the representations made by Mr Robertson, Mr von Geitz did not sign the Coutts contract.

 

8.From in or about October 2010, Mr Robertson began negotiating an agency agreement between Mr von Geitz and the Rothschild bank. At that time, Mr Robertson remained an employee of Coutts, and therefore he introduced Mr Martin Pearmund of the Rothschild bank into the negotiations. During the course of these discussions, Mr Robertson represented to Mr von Geitz that it was essential that any company incorporated to carry out the agency business for the Rothschild bank be associated with an FSA approved individual. To this end, Mr Robertson introduced Mr von Geitz to Mr Ralph Charles, and it was agreed that one third of the equity in the agency company to be incorporated be held by Mr Charles.

 

9.On 15 December 2010, Waldeck was incorporated for the purpose of carrying out the agency business for the Rothschild bank. The directors and shareholders of Waldeck were 65% Balthazar and 35% Charms Limited (a company incorporated and owned by Ralph Charles)..." (emphasis added).

 

Chronology

21.         Having been introduced to certain of the relevant parties, I propose to set out as much of the history as appears relevant for the purpose of determining the present applications. For the sake of clarity my aim is to do so in as close to chronological order as possible.

9 December 2010

22.         On 9 December 2010, Balthazar Holdings Limited ("Balthazar") was incorporated in the British Virgin Islands ("BVI") by the plaintiff. Balthazar was established to receive commissions paid to the plaintiff.

26 January 2011

23.         On 26 January 2011 Waldeck Limited ("Waldeck") was incorporated in Gibraltar, by the plaintiff. Balthazar owned 65% of the shares. The remaining 35% was owned by Charms Limited ("Charms") a company incorporated in Gibraltar.

27 January 2011

24.         On 27 January 2011 Balthazar was appointed as a director of Waldeck.

28 January 2011

25.         On 28 January 2011 Charms was appointed a director of Waldeck. 

 

21 March 2011

The 2011 agreement

26.         On 21 March 2011, Waldeck entered into a written contract with Banque Privee Edmund De Rothschild ("Rothschild") whereby, in consideration for Waldeck introducing clients to the Rothschild bank, Waldeck would be paid an agreed rate of remuneration ("the 2011 agreement").  According to para. 11 of the statement of claim in the 2012 proceedings: "The terms of the Waldeck Agency Agreement were negotiated and agreed by Mr Pearmund on behalf of the Rothschild Bank, in consultation with Mr Robertson and Mr von Geitz and Mr Charles on behalf of Waldeck".

13 June 2011

27.         Archimedes Private Office Limited ("Archimedes") was incorporated on 13 June 2011 by Mr. Robertson.

2 November 2011

The 2011 contract

28.         Para. 15 of the statement of claim in the 2012 proceedings pleads: "As a result of representations made by Mr Robertson on behalf of the Rothschild bank and/or Archimedes, Mr von Geitz was induced to become involved in Archimedes and to channel all future introductions through Archimedes rather than through the Waldeck agency agreement". On 2 November 2011, Balthazar entered into a written contract with Archimedes to provide client introductions to Archimedes for which Balthazar would be paid a monthly commission fee ("the 2011 contract"). In September 2016, Archimedes changed its name to Hottinger Family Office Limited ("Hottinger").

 

21 August 2012

29.         On 21 August 2012 Archimedes terminated the 2011 contract with Balthazar.

 

21 September 2012

30.         On 21 September 2012 Rothschild terminated the 2011 agreement with Waldeck. 

 

21 December 2012

The 2012 proceedings

31.         As noted earlier, the 2012 proceedings were issued on 21 December by Balthazar and Waldeck. Whitney Moore (the 11^th defendant in the 2022 proceedings) initially acted for both Balthazar and Waldeck. In the 2012 proceedings, the plaintiff's sought damages against Archimedes, Rothschild and Mr. Robertson for breach of contract, misrepresentation, negligence and/or breach of duty, arising from the alleged wrongful termination of the 2011 contract and the 2011 agreement. The plaintiffs' fundamental complaint was that the defendants wrongfully diverted or transferred, to Archimedes and/or Mr. Robertson, commission payment properly due to Waldeck. In the manner presently discussed, the plaintiff subsequently instituted proceedings on 12 July 2019 (bearing record no. 2019/5541P) entitled "Juerg Von Geitz v Edmond De Rothschild [Suisse] S.A., Martin Pearmud and Ariane De Rothschild" ("the 2019 Rothschild proceedings"). At paras. 20 - 23 of the judgment delivered in Von Geitz v Edmond De Rothschild (Suisse) S.A. & Ors. [2023] IEHC 224 (the "2023 judgment") Mr. Justice Cregan stated the following in relation to the 2012 proceedings brought by Balthazar and Waldeck:-

 

"10. The essential claim in the 2012 proceedings was that:

(i)         Rothschild appointed Waldeck under an agency agreement whereby Waldeck would refer some of its high net-worth clients to Rothschild Bank;

(ii)        In return Waldeck was to be paid an agreed rate of remuneration under the agreement;

(iii)      Waldeck introduced clients to Rothschild but was not paid for doing so;

(iv)      Rothschild offered Mr. Robertson and/or Archimedes an inducement to abandon the Waldeck agency agreement and to carry out all future introductions to Rothschild through Mr. Robertson and/or Archimedes;

(v)       On 21 August 2012, Archimedes terminated its contract with Balthazar;

(vi)      On 21 September 2012, Rothschild terminated the Waldeck agency agreement with effect from 31 December 2012; and

(vii)        As a result of the Defendants' conduct, and breach of contract, the Plaintiffs (i.e. Balthazar and Waldeck) suffered loss and damage.

 

11. The Waldeck agency agreement was entered into between Waldeck and the Rothschild Bank on or about 21^st March, 2011. It provides at paragraph 8.1 that "This agreement shall be governed by Swiss law".

 

12. It also provides at paragraph 8.2 that "Any dispute arising from this agreement, particularly regarding its construction and performance, shall be referred to the courts of Geneva canton which shall have jurisdiction thereover, subject to appeal to the Swiss Federal Tribunal."

 

Corporate plaintiffs

32.         At the risk of stating the obvious, the plaintiffs in the 2012 proceedings were corporate entities, reflecting the fact that it was Balthazar and Waldeck which entered into the relevant agreements in 2011 and allegedly suffered loss and damage. The plaintiff does not dispute the fact that Waldeck and Balthazar were the proper plaintiffs. Indeed, for the purpose of opposing the application to dismiss the 2022 proceedings, the "PLAINTIFF CHRONOLOGY OF RELEVANT FACTS (Plaintiff amendments in bold)" (the "plaintiff's chronology of facts") includes inter alia: "01/10/12 Juerg Von Geitz, on behalf of Waldeck and Balthazar, instructs Whitney Moore Partner Billy Parker to issue the 2012 Proceedings..." (emphasis in original).  Returning to the chronology:

 

6 February 2013

33.         Matheson, solicitors for the first defendant in the 2012 proceedings (Archimedes) entered an Appearance, on 6 February 2013.

29 July 2013

34.         On 29 July 2013, A&L Goodbody solicitors for the second named defendant (Rothschild) issued an application seeking to dismiss the 2012 proceedings on the grounds that this Court did not have jurisdiction. In the manner presently discussed, this application was successful.

 

23 September 2013

35.         Balthazar was restored to the Register in the BVI, on 23 September 2013, having been struck off previously for non-payment of fees.

 

20 March 2014

Defamation proceedings against the plaintiff

36.         On 20 March 2014, the directors of Archimedes, Mr. Padraic O'Giollain and Mr. Mark Robertson, issued defamation proceedings against Balthazar and Mr. von Geitz bearing record number 2012/13086P ("the defamation proceedings"). In the defamation proceedings, it was alleged that Mr. von Geitz had contacted third parties alleging that the plaintiffs were inter alia criminals due to the way they conducted their business. Fanning & Kelly solicitors represented Mr. O'Giollain and Mr. Robertson in the defamation proceedings.

 

37.         Fanning & Kelly is the former practice of the first named defendant in the 2022 proceedings. In October 2019, Fanning & Kelly merged with Flynn O'Driscoll solicitors and the latter is currently on record for the plaintiffs in the defamation proceedings. The first 10 defendants in the 2022 proceedings are partners in Flynn O'Driscoll.

26 March 2014

Defamation consent order

38.         On 26 March 2014 Mr. Von Geitz consented to an order made by this Court (Gillian J.) pursuant to s. 33 of the Defamation Act 2009 (the "defamation consent order") which restrained him from directly or indirectly publishing the defamatory material contained in an email of 5 March 2014.  

1 May 2015

Balthazar 'struck off' for a second time

39.         On 01 May 2015, Balthazar was again struck off the Register in the BVI (for a second time) for non-payment of fees. During the hearing, Mr. Compton opened the contents of a 27 July 2016 report by the BVI Financial Services Commission Registry of Corporate Affairs, regarding Balthazar. This report comprises exhibit 'KK2' to Mr. Kelly's affidavit sworn on 15 October 2024 grounding the application to dismiss the 2022 proceedings (the "grounding affidavit") and contains inter alia the following entries:-

 

"Date of search: 27/07/2016

This search is accurate as at the Search Date above...

Current status:

Status description:                Struck off - Non Pmt A/Fee

Status date:                                                   01/05/2015 ...

Certificate history...

Type of certificate                                             Date of filing

Certificate of Incorporation (original)     09/12/2010

Certificate of Restoration                                   23/09/2013

Certificate of good standing                              23/09/2013" (emphasis added).

 

14 May 2015

Defamation contempt order

40.         Returning to the defamation proceedings, a contempt application was brought against Mr. von Geitz for breach of the 26 March 2014 Order. On the day of the hearing of contempt proceedings, a further order was made (Gilligan J.) noting that Mr. Von Geitz was in contempt of the order made on 26 March 2014 and accepting his sworn undertaking to abide by the said order ("the defamation contempt order").

6 July 2015

Archimedes - security for costs

41.         Mr. Robin Hayes, solicitor and partner in the eleventh named defendant, avers (in his affidavit sworn on 26 September 2024): "There is a reference on our file to two letters dated 28th November 2014 and 6th July 2015 being received from Archimedes' then solicitors (Matheson) in relation to a request for security for costs (the letters themselves have not been located)".

3 November 2015

'Strike out' of 2012 proceedings against Rothschild

42.         On 3 November 2015, the plaintiffs in the 2012 proceedings consented to an order striking out the claim against Rothschild, due to the Irish Courts lacking jurisdiction. Para. 19 of the 2023 judgment explained the basis for and result of the application to dismiss the 2012 proceedings, in the following terms:-

"Application in 2012 proceedings to strike out for lack of jurisdiction

19.       However, in the 2012 proceedings the Plaintiffs accepted that there was an exclusive jurisdiction clause in the Waldeck agreement and that this applied to the 2012 dispute between the parties. As a result the Defendants in that case brought an application to the High Court in Ireland to strike out the 2012 proceedings on the grounds that the Irish courts lacked jurisdiction to deal with the issue because the exclusive jurisdiction clause in the agreement provided that the courts of Switzerland were to have exclusive jurisdiction. Although this was initially contested by the Plaintiffs in the 2012 proceedings, they ultimately conceded the matter and the High Court in Ireland struck out the 2012 proceedings on consent on the grounds that the Irish courts lacked jurisdiction." (emphasis added).

 

43.         As noted earlier, the plaintiffs in the 2012 proceedings were initially represented by Whitney Moore, solicitors. Whitney Moore were on record when the plaintiffs consented to the striking out of proceedings against Rothschild and, in the manner presently explained, continued to represent Waldeck until August 2016. Rothschild was represented A&L Goodbody Solicitors, and Archimedes was represented by Matheson Solicitors (up to 2019). 

 

1 May 2018

Balthazar 'struck off' for a third time

44.         Balthazar was struck off the BVI Register of companies for a third and final time, on 1 May 2018, for non-payment of fees. In this regard, Mr. Compton opened the contents of Exhibit 'KK4' to the grounding affidavit, which comprises a BVI Financial Services Commission Register of Companies search report concerning Balthazar. It contains inter alia the following entries:-

 

"Date of search: 01/11/2018

This search is accurate as at the Search Date above...

Company name:     Balthazar Holdings Ltd....

Date of incorporation/registration: 09/12/2010

Current status:

Status description:                Struck off - Non Pmt A/Fee

Status date:                                                   01/05/2018...

Certificate history...

Type of certificate                                             Date of filing

Certificate of Incorporation (original)     09/12/2010

Certificate of Restoration                                   23/09/2013

Certificate of good standing                              23/09/2013

Certificate of Restoration                                   30/08/2016

Certificate of good standing                              13/09/2016

Certificate of good standing                              23/11/2017" (emphasis added).

 

August 2016

45.         From para. 24 onwards of the grounding affidavit Mr. Kieran Kelly, solicitor and partner in Flynn O'Driscoll, makes the following averments on behalf of the first to tenth defendants:-

 

"24.      In August 2016 we were instructed by Charms, who were then the sole director of Waldeck, to discontinue the 2012 proceedings against Archimedes. At that time the only other director of Waldeck. Balthazar, had been struck off the Register of Companies in the BVI, since May 2015, for failing to file returns. I say that Charms was authorised to give the said instructions, which it did in full knowledge that I acted for the directors and shareholders of Archimedes in the defamation proceedings. As noted by Mr. Von Geitz, there is some commonality between Charms and Archimedes. This is true as Charms was owned by an associate company to Archimedes and was nominated by Archimedes to hold shares in Waldeck and act as director. Mr. Ralph Charles, a business associate of Archimedes had originally been a director and held shares in Waldeck. Mr. Charles transferred his shares and very soon after incorporation, Charms was appointed as director. I say and am so advised that this does not affect the separate legal personality of Waldeck, and this structure was something known to the parties, including Mr. Von Geitz. 

 

25.       Mr. Von Geitz also complains that once instructed by Waldeck I was obliged to act in its best interests. In response, I say that this is a matter for Waldeck and not Mr. Von Geitz. In any event I did act in Waldeck interests and on the instructions of Waldeck that were given to me by Charms. If Mr. Von Geitz disagrees with this then it is a matter that he can take up with Charms.

 

26.       It is also relevant that prior to my instruction in this matter, the former solicitors for Archimedes, Matheson LLP, wrote to the eleventh defendant as to how Waldeck could mandate the issue of the proceedings in circumstances where Charms had not appointed them, and the directors of Waldeck had not provided authority.

 

27.       The core claim being made by Mr. Von Geitz in this regard is that Balthazar was never struck off the Register of Companies in the BVI. This is also incorrect. Pursuant to an official Register of Companies search report issued to the BVI Financial Services Commission, Registry of Corporate Affairs, dated 27^th July 2016, the 'Certificate History' section of the report further shows that Balthazar had been struck off and that it was restored on 23 September 2013, on which date a Certificate of Restoration was issued. I beg to refer to a copy of the said search report dated 27^th July 2016 upon which marked with the letters 'KK3', I have signed my name prior to the swearing hereof.

 

28.       As can be seen from a further Register of Companies search report dated 01 November 2018, Balthazar was again struck off (for the third time) on 01 May 2018 for failure to pay annual fees. The 'Certificate History' section of the reports show that Balthazar was only restored to the register on 30 August 2016. Therefore, from 01 May 2015 to 30 August 2016, Balthazar was struck off the registry and therefore ceased to be a director of Waldeck. I beg to refer to a copy of the further search report dated 01 November 2018 upon which marked with the letters 'KK4', I have signed my name prior to the swearing hereof.

 

29.       Therefore, Charms as the sole director of Waldeck (which is permitted under Gibraltar Law) was authorised to instruct me to serve the said Notice of Discontinuance dated the 10 August 2016.  Before this, I served a Notice of Change of solicitor upon the solicitors who were previously on record, Whitney Moore, the eleventh defendant herein and no response or communication was ever received from Whitney Moore or any other person, including the plaintiff."

 

1 August 2016

Charms instruct Fanning & Kelly to act for Waldeck

46.         That Fanning & Kelly were given instructions by Charms, on 1 August 2016, to act as solicitors for Waldeck and subsequently acted on foot of those instructions, qua solicitors, is not in dispute.

 

Authority

47.         The plaintiff asserts that Charms had no authority to give instructions on behalf of Waldeck. This is encapsulated in the plea made at para. 21 of the plaintiff's amended statement of claim delivered in the 2022 proceedings, on 31 October 2023: "Mr. Kelly did not have the authority to represent Waldeck" (emphasis added). The same complaint is articulated, as follows, in the plaintiff's chronology of facts:-

 

"01/08/16 Robertson/Archimedes/Rothschild via Charms Limited, the purported sole director of Waldeck, fabricated the Waldeck mandate and instructed Fanning & Kelly to act on behalf of Waldeck..." (emphasis in original).

 

48.         Again, the fact Fanning & Kelly was "instructed...to act on behalf of Waldeck" is not disputed. The plaintiff's assertion is that Charms lacked the authority do so because, according to the plaintiff, it was not the "sole director of Waldeck".

 

3 August 2016

Notice of Change of Solicitors

49.         It is common case that Fanning & Kelly filed a Notice of Change of Solicitor in the High Court Central Office, in accordance with instructions received, thereby coming on record on behalf of Waldeck in the 2012 Proceedings. It is also a matter of fact that following receipt of this Notice of Change of solicitors, Whitney Moore ceased acting for Waldeck.

 

Valid authority

50.         Again, the plaintiff complains that Charms did not have valid authority to instruct Fanning & Kelly to come on record for Waldeck. The plaintiff puts this as follows in his chronology of relevant facts:

 

"03/08/16 Robertson/Archimedes/Rothschild/Charms Notice of change of solicitor purportedly on behalf of Waldeck in the 2012 proceedings filed by Fanning Kelly in the central office without valid authority from Waldeck" (emphasis in original).

 

51.         This reflects para. 22 of the plaintiff's amended statement of claim in the 2022 proceedings, wherein, with respect to the first named defendant and his firm, the plaintiff pleads:

 

"He delivered filings to the Central Office of the High Court purporting to represent Waldeck when, in fact, Mr. Kelly had no lawful authority to do so." (emphasis added).

 

10 August 2016

Notice of Discontinuance

52.         On 10 August 2016, Fanning & Kelly filed a Notice of Discontinuance on behalf of Waldeck in respect of the 2012 Proceedings. Again, the fact that Fanning & Kelly did so, qua solicitors, acting on instructions, is not in dispute. The essence of the plaintiff's complaint is, once more, that Charms did not have valid authority to instruct Fanning & Kelly on behalf of Waldeck to discontinue the 2012 Proceedings. The plaintiff puts this as follows at para. 26(e) of his written legal submissions, dated the 26 January 2015:-

 

"Charms discontinuing proceedings against themselves in a fraudulent misrepresentation as the 'sole director' of Waldeck."

 

The "crux" of the 2022 proceedings

53.         In oral submissions, the plaintiff made clear that the "crux" of the 2022 proceedings is "the Notice of Change of Solicitors", his contention being that Charms lacked the authority to give "valid" instructions to Mr. Kelly's firm on behalf of Waldeck. This is articulated, as follows, in para. 29 of the amended statement of claim in the 2022 proceedings:

 

"... disregard of the incontrovertible evidence that corroborated Mr. Kelly/Flynn O'Driscoll did not have the lawful authority or mandate to represent to Waldeck" (emphasis added).

 

Same complaint

54.         Whilst I will look more closely at the 2019 proceedings in due course, it is useful to note at this juncture that the foregoing complaint in the 2022 proceedings is also central to the 2019 proceedings.  Para. 21 d. of the plaintiff's statement of claim delivered in the 2019 proceedings, on 31 July 2023 asserts: -

"d. the illegal hijacking of the plaintiff's company Waldeck by solicitors acting under the defendants' verified instructions, including filing false declarations without lawful authority at the High Court Central Office of Change of Solicitors and Discontinuance Notifications." (emphasis added).

 

55.         At the risk of stating the obvious, this alleged wrong and the consequences of same is simultaneously 'laid at the door' of the 5 defendants named in the 2019 proceedings and the 11 (entirely different) defendants in the 2022 proceedings.

 

19 August 2016

56.         Returning to the chronology, Fanning & Kelly Solicitors, on the instructions of Waldeck, wrote on 19 August 2016 to a Mr. Gerald Virieux querying the source of his instructions to represent Waldeck. The said letter stated inter alia:-

 

"Dear Mr. Virieux,

We are instructed by Waldeck Limited.

 

It has come to our client's attention that you have demanded payment on behalf of our client from Edmond De Rothschild (Suisse) SA under cover of letter dated 10 February 2016.

 

You have no authority to demand such payment on behalf of Waldeck Limited.

The sole director of Waldeck Limited is Charms Limited.

 

The co-director, Balthazar Holdings Limited is, in fact, a company which has been struck off the register of companies in the British Virgin Islands as of 1 May 2015. It therefore could not possibly be in a position to give you instructions as it has no legal status. A simple company search in Gibraltar would show you who the company directors are.

 

We confirm that we have been instructed by Charms Limited itself who are most taken aback that it should be suggested that Waldeck Limited has in anyway instructed you in any matter concerning it.

 

No such instructions were ever given or furnished by our client.

 

Our client therefore instructs you to immediately stand down and withdraw all claims purportedly made on it[s] behalf. You must also advise all those parties whom you have advised of you acting for our client Waldeck Limited that you had no such authority.

 

To be clear Waldeck Limited has not instructed you to take any steps or actions. As solicitors for Waldeck Limited, we ask that you identify precisely who gave instructions on behalf of Waldeck Limited in relation thereto and the basis of those instructions..." (emphasis added).

 

57.         In the foregoing manner, the first named defendant's firm made 'crystal clear' that it was acting for Waldeck on the instructions of Charms, the sole remaining director (Balthazar having been struck off the register in the BVI some 15 months earlier).

 

22 August 2016

58.         By letter, dated 22 August 2016, Mr. Virieux of Messrs. Bugnion Ballanstat Ehrler, Attorneys at Law, Geneva, replied to Fanning & Kelly Solicitors stating inter alia:-

 

"In your letter, you are asking me to provide certain information concerning 'Waldeck Limited'.

 

Rules of professional secrecy forbid me from disclosing any information about a specific client or case to a third party, including disclosing whether I do or do not represent a given person or company.

 

You assert that you are acting on the instructions of Waldeck Limited. Yet you do not provide any evidence that you have authority to represent Waldeck Limited. 

As a consequence, I am not in a position to provide you with any information whatsoever in connection with the questions raised in your letter."

 

The plaintiff's "core" complaint

59.         Mr. Kelly makes the following averments at para. 23 of his grounding affidavit in the motion to dismiss the 2022 proceedings :-

 

"With regard to the merits of the within proceedings, the core complaint made by Mr. Von Geitz is that I wrongly acted on behalf of Waldeck when I served the said notice of discontinuance dated the 10 August 2016. This is demonstrably false. In August 2016 my former firm of Fanning & Kelly were instructed by Waldeck to discontinue the 2012 proceedings. At that time neither I nor Fanning Kelly were acting on behalf of any party in the 2012 proceedings. As said above, we were acting for the directors and shareholders of Archimedes in their personal capacity, in the Defamation Proceedings." (emphasis added).

 

Assertions

60.         The foregoing is indeed the "core" complaint or, as the plaintiff puts it, the "crux" of the 2022 proceedings. The proposition that Charms lacked authority to give valid instructions to Fanning & Kelly (to come on record for Waldeck it the 2012 proceedings and to serve a Notice of Discontinuance) is based on a range of assertions made by the plaintiff, in particular, that:-

 

(i)            Charms was not a director of Waldeck/vacated this role;

(ii)           the plaintiff's signature on the documentation appointing Charms as a director of Waldeck was forged;

(iii)         Balthazar was not struck off the Register in the BVI when Charms gave instructions on behalf of Waldeck; and

(iv)         that, during the period Balthazar was struck off, it could nonetheless validly act as Director of Waldeck.  

 

 

 

Director of Waldeck

61.         Regarding the assertion that Charms either was not a director, or vacated its directorship of Waldeck, Exhibit 'KK6' to Mr. Kelly's second affidavit comprises a 26 March 2019 report of "Latest/current available information on company" regarding Waldeck, certified by the Gibraltar Registrar of Companies. This contains inter alia the following information:-

 

"Name                                                             Waldeck Limited

Incorporation dated                                      January 26, 2011

Type                                                                 Private company limited by shares...

Last annual return                                           

Filed made up to                                               January 26, 2012

Last accounts filed

Made up to                                                       00/00/00...

Total number of issued shares                          100.00...

Shareholders

Name                                                               Balthazar Holdings Limited...

Shares held                                                      65 ordinary shares of GBP 1 each

Name                                                               Charms Limited...

Shares held                                                      35 ordinary shares of GBP 1 each

Directors

Name                                                               Balthazar Holdings Limited...

Name                                                              Charms Limited..." (emphasis added).

 

62.         It has not been asserted that the information provided by the Registrar of Companies in Gibraltar is other than entirely accurate. Thus, objective evidence makes clear that at all material times Charms was a director of Waldeck. This utterly undermines the applicant's assertions that Charms was not, or ceased to be, a director of Waldeck.  

 

30 August 2016

Balthazar restored to the Register

63.         Returning to the chronology (and recalling that Balthazar was struck off the BVI Register of Companies for a second time on 1 May 2015 for non-payment of fees) Balthazar was restored to the Register on 30 August, 2016. As to objective evidence for this, a BVI Register of Companies search report dated 1 November 2018  contains inter alia the following entries: "Certificate of Restoration" filed on "30/08/2016".

 

September 2016

Hottinger

64.         Archimedes changed its name to Hottinger Family Office Limited ("Hottinger") in September 2016.

 

13 September 2016

Balthazar Certificate of Good Standing

65.         The plaintiff lays particular emphasis on Exhibit 'JVG6' to his affidavit sworn on 5 November 2024, which comprises a BVI Business Companies Act "Certificate of Good Standing" regarding Balthazar (the "Certificate"). At para. 10 of his affidavit, the plaintiff makes inter alia the following averments in relation to same:

 

"Balthazar Holding Certificate of Good Standing officially verifies that it had not, in fact, been struck off the register of companies in the British Virgins Islands." (emphasis added).

 

66.         In objective terms, the Certificate does no such thing. The Certificate relied upon by the plaintiff is dated13 September 2016. This is significant, because the very first sentence of the Certificate states:-

 

"The REGSTRAR OF CORPORATE AFFAIRS, of the British Virgin Islands HEREBY CERTIFIES that, pursuant to the BVI Business Companies Act, 2004 at the date of this certificate, the company..." (emphasis added).

 

67.         Having made crystal clear that the information is certified, as of 13 September 2016, the Certificate goes on to confirms inter alia that Balthazar is on the register of companies; has paid all fees and penalties; and proceedings to strike the name of the company off the register have not been instituted. In objective terms, this Certificate dated 13 September 2016 does not alter or affect the fact that Balthazar was:-

 

(i)             restored to the Register, on 23 September 2012, having been struck off for non-payment of fees;

(ii)           struck off for a second time, on 1 May 2015, for non-payment of fees; and

(iii)         restored to the Register again, on 30 August 2016.

 

3 October 2016

68.         On 3 October 2016, an order was made permitting the plaintiff to amend the plenary summons in the 2012 proceedings by changing the address of the third defendant (Mr.Mark Robertson) to a UK address, in place of the Swiss address identified in the summons, as issued.

 

27 October 2016

69.         The third named defendant in the 2012 proceedings, Mr. Robertson, was served with notice of same at a London address, on 27 October 2016.

 

8 October 2018

70.         On 8 October 2018, this Court (Flaherty J.) made an Order granting judgment in default of appearance against Balthazar in the defamation proceedings (the plaintiff in the present proceedings having consented to orders against him on 26 March 2014, and 14 May 2015, in the defamation proceedings).

 

Plaintiff collects file from Whitney Moore

71.         The plaintiff contacted Whitney Moore in October 2018 to arrange the collection, from that firm's office, of the file relating to the 2012 proceedings. The plaintiff also arranged for a payment to be made to the eleventh named defendant in respect of all unbilled outlays which had been incurred in the 2012 proceedings.

 

72.         I pause to note that the plaintiff collected files from the eleventh defendant almost 7 years ago. Thus, he has had more than ample time to identify and exhibit documentation in support of his claim. Despite this, there is not a shred of evidence which lends any objective support to the assertions which feature in both the 2019 and 2022 proceedings. This is a topic I will return to. For the moment, I propose to continue with the chronology.

 

No instructions to Whitney Moore

73.         As averred by Mr. Hayes on behalf of the eleventh named defendant, at para. 18 of his 26 September 2024 affidavit: "At that point our firm took the view that we no longer acted for Balthazar in relation to the 2012 proceedings but in reality, it appears that no instructions had been forthcoming for the previous two year period going back to in or around October 2016". There is no evidence before this court which runs contrary to those averments.

 

Inaction

74.         Elsewhere in the same affidavit, Mr. Hayes avers inter alia, with regard to the period October 2016 - October 2018, that: "No instructions from Mr. Von Geitz (or from any other person) on behalf of Balthazar were forthcoming in terms of progressing the proceedings as against the remaining Archimedes and Robertson defendants". Mr. Hayes also made the following averments in relation to the lack of instructions to progress the 2012 proceedings:-

 

"I can only surmise that the inaction on the file during that period was likely due to the following:

(i)            The High Court's Order of 3rd November 2015 striking out the proceedings as against the Rothschild defendant for lack of jurisdiction; while not certain, it seems unlikely that the court would have reached a different conclusion in respect of the Archimedes and Robertson defendants;

(ii)           The apparent lack of any instructions provided during the period as to whether Balthazar had any desire to continue the proceedings against Archimedes and Robertson defendants;

(iii)         Balthazar having been struck off the Company's Register in May 2015 (albeit that it may have been restored to the Register in September or October 2016);

(iv)         The likelihood that Archimedes (and possibly also Mr. Robertson) would apply for - and obtain - security for costs against Balthazar if the proceedings progressed beyond any further challenge to jurisdiction; and

(v)          Mr. Von Geitz's decision to commence a fresh set of proceedings (i.e. the 2019 proceedings) pursuing reliefs against a further Rothschild corporate entity and individuals associated with that company but arising from the same central event and factual matrix."

 

21 November, 2018

2018 Complaint to Solicitors Disciplinary Tribunal

75.         Returning to the chronology, on 21 November, 2018, the plaintiff made a formal complaint to the Solicitors Disciplinary Tribunal (or "Tribunal") regarding the first named defendant (the "2018 complaint"). A copy of the 2018 comprised exhibit 'KK1' to the grounding affidavit. Paragraph 2 of the complaint-form asked the complainant to identify whether the solicitor was or was not retained by the complainant in a professional capacity.

 

76.         By deleting the word "was", the plaintiff confirmed that the first named defendant and the firm Fanning & Kelly were not retained by him in a professional capacity. The plaintiff also specified that Mr. Kelly and his firm was "retained by Charms Ltd ...". In other words, there is an explicit acknowledgment by the plaintiff that the first named defendant in the 2022 proceedings and his firm were not retained by him, but were acting on instructions from Charms. The 2018 complaint went on to state that Charms was "allegedly and falsely" representing Waldeck. 

 

"Without valid authority"

77.         The essence of the complaint to the Tribunal against the first defendant is that a Notice of Discontinuance was filed "without valid authority". Based on that claim, the plaintiff complained that the first named defendant "represents himself falsely as the solicitor to the company" to the detriment of Waldeck.

 

78.         I pause to say that the substance of the plaintiff's 2018 complaint is identical to the complaints he makes in the 2022 proceedings (and, as previously noted, in the 2019 proceedings).   The plaintiff's 2018 complaint went on to make inter alia the following assertions in 'support' of the complaint:

 

"For the record, Balthazar Holdings was never dissolved or indeed 'struck off' and Balthazar's legal authority has never been punctured."

 

79.         In the manner examined earlier, objective evidence utterly undermines the assertion that Balthazar was never stuck off. It is an indisputable fact that Balthazar was struck off the BVI Register of Companies for a second time (for non-payment of fees) on 1 May 2015 and was not restored to the BVI Register until 30 August 2016. 

 

Ad hominem attacks

80.         It is clear that at the 'heart' of the complaint was the plaintiff's allegation that "Mr. Kelly does not have authority to represent Waldeck". Unfortunately, this was accompanied by a range of the most serious allegations one could level at a legal professional, made in a most disrespectful manner by way of ad hominem attacks, without any objective evidence to support them. The following is an extract from the 2018 complaint:-

 

"Mr. Kelly is lying through his teeth. Mr. Kelly further claimed to have been instructed by the sole director at the time. Again, this is false as it is not possible for another sole director to have instructed Mr. Kelly....

 

For the record: all Mr. Kelly's claims are lies, falsehoods and are not true. It beggars belief how a solicitor can lie so brazenly...

 

In my opinion, Mr. Kelly's conduct is not becoming of a solicitor and his name is not worthy of continued inscription on the Roll of solicitors."

 

29 March 2019

Plaintiff withdraws his 2018 complaint

81.         Despite having made allegations of the most serious kind in lurid and personal terms, the plaintiff withdrew same. It is also worth noting that the plaintiff had the benefit of legal advice when he withdrew the 2018 complaint. The final page of exhibit 'KK1' to the grounding affidavit comprises a copy letter dated 29 March 2019 sent by Messrs. Ken Kennedy, solicitors, to the Solicitors Disciplinary Tribunal which states:-

 

"I refer to the above matter. I wish to inform you that our client Mr. Juerg Von Geitz (Waldeck Ltd.) wishes to withdraw the complaint in the above matter, we have c.c.'d Mr Kieran Kelly of Fanning Kelly with a view of informing him of same."

 

Reason

82.         One might reasonably assume that the plaintiff's withdrawal of the complaint was the end of the matter. Far from it. In the manner presently examined, not only do the same complaints feature in both the 2019 proceedings, and in the 2022 proceedings, they form the basis of two more complaints (which the plaintiff subsequently made to the Legal Services Regulatory Authority).

 

83.         During the hearing, the plaintiff submitted that he withdrew the 2018 Tribunal complaint in case a failure to meet the requisite standard of proof would "prejudice his civil case". However this is impossible to reconcile with the fact that the plaintiff went on to make further complaints, of the same nature, against the same party.

2 July 2019

84.         Returning to the chronology, Waldeck was struck off the Register companies in Gibraltar, on 2 July 2019. In this regard, a report regarding Waldeck issued by Companies House Gibraltar, on 5 April 2024, the accuracy of which is not in dispute, states inter alia:-

 

"Status - struck off by Registrar (company not carrying on business) on the 02/07/2019 by the Notice No. 4463" (emphasis added).

 

85.         The same report identifies the shareholders as Balthazar and Charms and identifies the "Directors" as being "Balthazar Holdings Limited" with an address in the BVI "appointed on 27/01/2011" and "Charms Limited" with an address in Gibraltar, "appointed on 28/01/2011".  Thus, there is objective evidence before this Court that at all material times from January 2011 onwards, the directors of Waldeck were Balthazar and Charms. In the manner discussed in this judgment, the plaintiff's claims to the contrary are no more than 'bald' assertions, which completely lack credibility and are entirely undermined by the facts. It can be added that, on the plaintiff's account, he is the beneficial owner of 99.97% of the share capital in Waldeck. Why he allowed Waldeck to become struck off and dissolved is entirely unexplained.  

 

12 July 2019

The 2019 Rothschild Proceedings

86.         As touched on earlier, the plaintiff instituted the 2019 Rothschild proceedings (entitled Juerg Von Geitz v Edmond De Rothschild [Suisse] S.A., Martin Pearmud and Ariane De Rothschild, bearing record no. 2019/5541P) on 12 July 2019. At paras. 20 - 23 of the 2023 judgment (neutral citation [2023] IEHC 224), Mr. Justice Cregan described the 2019 Rothschild proceedings as follows:-

 

"20.  In the 2019 proceedings, the Plaintiff is Mr. von Geitz. He pleads (at para. 6 of his statement of claim) that he was the sole shareholder and sole director of Balthazar and an employee of Waldeck.

 

21. The first Defendant is the Rothschild Bank; the second Defendant is a former director of the said bank; the third Defendant is the chairman of the said bank. All Defendants are based in Switzerland.

 

22. The essential nature of the 2019 proceedings is as follows:

(i) that on 21 May, 2011, Rothschild and Waldeck entered into the Waldeck agency agreement (as set out above);

(ii) that Waldeck would introduce clients to Rothschild and would be paid for so doing; (iii)that Mr. Robertson incorporated Archimedes Ltd in Ireland and became a director and employee of Archimedes;

(iv) that on 23 September, 2012, Mr. von Geitz received notice from the Rothschild bank informing him that it intended to terminate the Waldeck agency agreement;

(v) that Mr. von Geitz had made various communications which he called "Protected Disclosures" under the Irish Protected Disclosures Act, 2014 to various parties - including the Defendants in the 2019 proceedings (being the Rothschild Bank, the chairman of the said bank and a former director of the Rothschild Bank) and also to others including the Swiss Financial Market Supervisory Authority, and the Central Bank of Ireland;

(vi) that as a result of these protected disclosures, Mr. von Geitz has "suffered detriment";

(vii) that the Rothschild Bank caused this financial detriment and damage to Mr. von Geitz by the termination of the Waldeck agency agreement;

(viii) that this resulted in the loss of

(i)            "significant salary payments ordinarily due to the Plaintiff as an employee of Waldeck" and

(ii)           dividends to Mr. von Geitz due to Mr. von Geitz's company, Balthazar which was the majority shareholder of Waldeck.

 

 23. In essence, the protected disclosures as pleaded, were allegations that Archimedes Private Office Ltd, a company incorporated in Ireland, was a "concealed branch" of the Rothschild bank in Ireland and had not sought authorisation from the Central Bank in Ireland."

 

87.         Cregan J. went on to note that the "particulars of detriment" pleaded in the 2019 Rothschild Proceedings began as follows:-

 

"(a) The Plaintiff, having made several protected disclosures to the employees of the first named Defendant, including Mr. Mark Robertson and the second named Defendant between 12^th September, 2012 and 19^th September, 2012, has suffered detriment and continues to suffer detriment following the enactment of the Protected Disclosures Act, 2014."

 

Considerable overlap

88.         The learned judge went on to note the "considerable overlap" between the 2012 Proceedings and the 2019 Rothschild Proceedings. Cregan J. put matters as follows at paras. 28 - 32:-

 

"28. It is clear that the central issue in the 2012 proceedings is the termination of the Waldeck agreement on 21^st September, 2012 by the Rothschild Bank, and the Plaintiffs' claims that they lost the benefit of the Waldeck agency agreement and the Balthazar consultancy contract.

 

29.  It is also clear that the central issue pleaded by the Plaintiff, Mr. von Geitz, in the 2019 proceedings is that Rothschild Bank terminated the Waldeck agency agreement causing Mr. von Geitz personally, the detriment about which he complains.

 

30.  Therefore the central event in both the 2012 and 2019 proceedings is the termination of the Waldeck agreement by the Rothschild Bank.

 

31.  When set out in these terms, it is clear that there is a considerable overlap of the factual and contractual matters complained of in both sets of proceedings and that the termination of the Waldeck agreement by the Rothschild Bank is, in substance, the central issue about which the Plaintiffs (Balthazar and Waldeck) complain in the 2012 proceedings and about which Mr. von Geitz (as the personal Plaintiff) complains in the 2019 proceedings.

 

32.  This analysis is of some importance because, as will be seen later in the judgment, the central question which arises on the application to strike out the case on the grounds that the Irish courts lack jurisdiction under the Lugano Convention turns on the meaning and interpretation of Article 5(1) and Article 5(3) of the Lugano Convention." (emphasis added).

 

89.         The observations made by the learned judge, at para. 28, apply equally to the two sets of proceedings which are the subject of the present applications to dismiss. The central issue is the termination by Rothschild of the 2011 agreement with Waldeck; the termination by Archimedes of the 2011 contract with Balthazar; and a variety of alleged losses for which the plaintiff (as opposed to the corporate entities which were parties to those commercial agreements) now seeks to claim.

 

Jurisdiction

90.         In the manner explained by Cregan J. in the 2023 judgment, given that all three defendants in the 2019 Rothschild proceedings were domiciled in Switzerland, they should be sued there unless the plaintiff could establish that his case came within one of the exceptions to the Lugano Convention, 2007. As the learned judge put it, at para. 77:-

 

"The central issue in this application is therefore whether these proceedings are matters relating to a contract under Article 5 (1) (in which case, as the contract has an exclusive jurisdiction clause, the Swiss courts have jurisdiction, and the Irish courts must decline jurisdiction) or whether these proceedings are matters relating to a tort under Article 5 (3)."

 

91.         From para. 94 of his judgment, Cregan J. explained why he had come to the view that the plaintiff's claim was one relating to a contract in the sense of Article 5 (1) of the Lugano Convention. Given that the relevant contract has an exclusive jurisdiction clause conferring jurisdiction on the Swiss courts, Cregan J. was satisfied that the Irish courts have no jurisdiction. 

92.         During oral submissions before me, the plaintiff took issue with the findings of Cregan J. in respect of jurisdiction. The plaintiff laid emphasis on the fact that he is an Irish citizen living in this State. However, an appeal against the 2023 judgment was comprised and, therefore, none of the findings made by Cregan J. have been overturned.

 

Indirect consequence

93.         Returning to the 2023 judgment, Cregan J. went on to say inter alia:-

 

"113.  In my view, the harm alleged by Mr. von Geitz is merely the indirect consequence of the alleged financial losses suffered by Waldeck by virtue of the termination of the Waldeck agency agreement with the Rothschild Bank...

 

115.  It is clear that there really is no connection between the Plaintiff's case and the Irish jurisdiction - other than the fact that the Plaintiff claims that he made protected disclosures under an Irish statute, and allegedly that as a result of these protected disclosures, Rothschild Bank terminated the Waldeck agreement in Gibraltar...

 

117.  In any event, such personal or reputational damage to the Plaintiff are again an indirect consequence of the damage caused by the termination of the Waldeck agency agreement in Gibraltar by the Rothschild Bank. I also note in this regard that the Plaintiff applied for bankruptcy and was adjudicated a bankrupt in Northern Ireland. Insofar as this is the personal or reputational damage about which he complains, I note again, there is no connection with this jurisdiction." (emphasis added).

The observations made by Cregan J. at para. 113 seem to me to apply equally to both the 2019 and 2022 proceedings which are the subject of the present dismissal applications. 

 

Doomed to fail

94.         Furthermore, the judgment of Cregan J. makes clear that, insofar as a claim is made in this jurisdiction for losses arising from the termination by Rothschild of its 2011 Agreement with Waldeck, that claim is doomed to fail. This is in circumstances where the Swiss Courts have exclusive jurisdiction.

17 July 2019

95.         Returning to the chronology, on 17 July 2019, Fanning & Kelly served notice of change of solicitor in respect of the first named defendant in the 2012 proceedings (Archimedes).

4 October 2019

The 2019 proceedings

96.         On 4 October 2019 the plaintiff issued the 2019 proceedings (bearing record number 2019/7704P). As noted earlier, the defendants are Mr. Robertson, Mr. O'Giollain, two Hottinger companies and Mr. David Geary.

 

97.         The plaintiff's claim in the 2019 proceedings is for damages pursuant to s. 13 of the Protected Disclosures Act 2014 ("the 2014 Act") for alleged detriment which the plaintiff said to have been suffered as a consequence of making what the plaintiff characterises as protected disclosures. Paragraph 19 of the plaintiff's statement of claim delivered on 31 July 2023 in the 2019 proceedings begins:-

 

"Particulars of detriment and unlawful retaliation in this jurisdiction

 

19.  The plaintiff, having made protected disclosures to the employees and directors of the third and fourth named defendants, comprising defendants Mr. Robertson, Mr. O'Giollain and Mr. Geary, has suffered detriment and continues to suffer detriment following the enactment of the Protected Disclosures Act, 2014.

 

20.  Following the plaintiff's follow-up protected disclosures, the first, second and fifth named defendants have neglected and refused to recognise the plaintiff's detriment and committed a succession of unlawful acts of 'retaliation' including 'harmful events'. Their refusal to recognise the plaintiff's detriment causes continued detriment from 12 August 2012 to the date of hearing of these proceedings.

 

21.  The first, second, third, fourth and fifth named defendants, its servants and agents, did cause personal, reputational and financial detriment and damage to the plaintiff..."

 

Alleged 'protected disclosures'

98.         The alleged protected disclosures are contained in the following documents (found at exhibit 'KK5' of Mr. Kelly's affidavit sworn in the 2019 proceedings on 15 October 2024):-

·            11 September 2012, email from the plaintiff to Mr. Mark Robertson of Archimedes (later Hottinger);

·            16 November 2018, email from the plaintiff to Mr. Robertson;

·            27 November 2018, email from the plaintiff to Mr. Padraic O'Giollain of Archimedes (now Hottinger); and

·            18 January 2019, email from the plaintiff to Mr. David Geary of Archimedes (now Hottinger).

 

Same 'disclosures', different defendants

99.         Before proceeding further, it is appropriate to note that the alleged protected disclosures for the purpose of the 2019 proceedings are the very same as those relied upon by the plaintiff in the 2019 Rothschild Proceedings. This is despite the fact that those said to be responsible for the alleged detriment are entirely different defendants (in the 2019 Rothschild proceedings, the plaintiff sued Edmond De Rothschild [Suisse] S.A., Martin Pearmud and Ariane De Rothschild, none of whom are named in the 2019 proceedings). 

 

The first 'protected disclosure'

100.      The first of what the plaintiff claims to be protected disclosures for the purpose of the 2019 proceedings is an email, dated 11 September 2012, which the plaintiff sent to Mr. Robertson, entitled "Subject: Archimedes and Rothschild". It will be recalled that Mr. Robertson was the principal of Archimedes and that the business arrangements between Archimedes and Rothschild were comprised in:-

(i)                   the 2011 Agreement between Rothschild and Waldeck; and

(ii)                 the 2011 Contract between Archimedes and Balthazar. 

It will also be immediately apparent that the plaintiff's email of 11 September 2012 to Mr. Robertson was sent after Archimedes terminated the contract with Balthazar, on 21 August 2012. 

 

Demand and threat of litigation

101.      Turning to the contents of the plaintiff's 11 September 2012 email, it stated:-

 

"In order to assess properly my continued involvement in whatever capacity in Archimedes Private Office (APO), kindly answer the following questions:

·         Do you have BPER sign off for your direct financial interest in APO as founder and de facto partner?

 

·         My lawyers have advised that I have good grounds for an action against you personally for misrepresentation in respect of the warranties that you gave to me in return for my introductions as the agent to Irish Ultra High Net Worth families to first of all Coutts and then Rothschild. As such, in the event of an unsatisfactory outcome in my action against APO, I'll be seeking recourse against you in a personal capacity. In the event of this happening, what is BPER's view?

 

·         A conflict of interest clearly exists such that your personal financial interest in APO has interfered with your ability to fairly represent Rothschild in its relationship with Waldeck. In short, you stand to gain personally from APO and have no incentive to use or promote another agency within Rothschild. As the Rothschild signatory on the Waldeck contract, do I contact Martin Pearmund to change Waldeck's relationship officer?" (emphasis added).

 

Not a protected disclosure

102.      At para. 13 of the plaintiff's statement of claim in the 2019 proceedings he pleads inter alia that "This email is a protected disclosure under the Protected Disclosures Act 2014". However, in objective terms, the plaintiff's 11 September 2012 email is nothing of the sort. Rather it comprises a demand, accompanied by a threat of litigation, in the context of commercial agreements between corporate entities covered by two private contracts, the first of which had already been terminated. I will return to this issue later in this judgment.

 

Detriment

103.      Returning to the statement of claim in the 2019 proceedings, the first item of alleged "detriment" pleaded by the plaintiff at para. 21 is the following:-

 

"a.  so-called super injunction High Court proceedings against the plaintiff in 'retaliation' by the first and second named defendants under record no. 2014/3246P, including securing a newspaper reporting ban and an order preventing the plaintiff from informing his introductions and friends of the modus operandi of the defendants."

 

Defamation and contempt

104.      The foregoing entirely ignores the fact that the plaintiff consented to an order restraining him from making the defamatory comments in question. The plaintiff also ignores the fact that the said order was breached, resulting in the bringing of contempt proceedings against him.  Furthermore, the plaintiff ignores the fact that he acknowledged being in contempt of the first, and consented to a second, court order in the relevant proceedings.

 

Instructions

105.      As well as asserting that unnamed parties encouraged the Central Bank to investigate him (para. 21. b) in a manner the plaintiff does not specify, and attempted to frustrate his bankruptcy in Northern Ireland (para. 21. c) in correspondence which the plaintiff does not exhibit, the next item of alleged detriment is pleaded to be:-

 

"d.  the illegal of high jacking of the plaintiff's company Waldeck by solicitors acting under the defendants' verified instructions, including filing false declarations without lawful authority at the High Court Central Office of change of solicitors and discontinuance notifications." (emphasis added).

 

Charms

106.      Whilst asserting that Charms lacked valid authority to do so, the plaintiff does not dispute the fact that Charms gave instructions for a notice of change of solicitors to be served, and for the 2012 Proceedings to be discontinued. It is not in dispute that the relevant solicitors acted in accordance with instructions. Leaving entirely to one side the Foss v Harbottle issue, it is with Charms that the plaintiff appears to have a difficulty, not any of those named as defendants in the 2019 proceedings. In the manner presently explained, there is simply no credible basis for the allegation that there was any filing of 'false declarations without lawful authority'.

 

Forging

107.      At para. 21. e, the plaintiff pleads the following: "detriment":-

 

"e.  forging of Waldeck company formation documents by digitally superimposing the plaintiff's purported signature appointing a director."

 

108.      The foregoing is utterly undermined by, inter alia, pleas made on the plaintiffs' instructions in the 2012 Proceedings. Para. 9 of the statement of claim delivered on 21 December 2012 by Whitney Moore on the plaintiff's instructions pleads:-

 

"9.  On 15 December 2010, Waldeck was incorporated for the purpose of carrying out the agency business for the Rothschild Bank. The directors and shareholders of Waldeck were 65% Balthazar and 35% Charms Limited (a company incorporated and owned by Ralph Charles)." (emphasis added).

 

109.      There has never been a suggestion that the instructions given by the plaintiff to Whitney Moore were not accurately represented in the statement of claim, delivered on 21 December 2012.  At that point in 2012 (when commencing proceedings against Archimedes, Rothschild and Mr. Robertson) far from suggesting anything untoward in relation to the appointment of Charms as a director of Waldeck, reliance was pleaded on the fact of Charms being both a director and 35% shareholder of Waldeck. This, of course, reflects the objective evidence from the BVI Register of Companies. The foregoing is an issue I will presently return to, in circumstances where it is also the core complaint in the 2022 proceedings.

 

110.      Continuing to look at the statement of claim in the 2019 proceedings, para. 21.f begins:-

 

"f.  false representation by same solicitors, again without lawful authority and instructed by the defendants..." (emphasis added).

 

111.      The alleged "detriment" pleaded at paras. 20 g. and h. is:-

 

"g.  Conflicts of interest violations by the same solicitors acting on behalf of the defendants, including purportedly acting for both the plaintiff and defendant in High Court proceedings under record no. 2012/13086P.

 

h.  Their solicitor falsely asserted that the plaintiff's company Balthazar was struck off or dissolved to manufacture a mandate without lawful authority to act on behalf of the plaintiff's company Waldeck..." (emphasis added).

 

112.      A consistent theme throughout para. 21 is the plaintiff's unhappiness with actions taken by solicitors on foot of instructions from their clients. The statement of claim concludes as follows:-

 

"22.   The plaintiff has not received the shareholding due and owing under the Archco/Hottinger Balthazar Agreement.

 

23.  The plaintiff reserves the right to furnish further particulars of detriment, retaliation, harmful events, loss and damage prior to the trial of this action and/or in the course of this hearing thereof.

 

AND THE PLAINTIFF CLAIMS:

(1)  Damages for detriment

(2)  Interest pursuant to statute..."

 

113.      As regards the numerous references to Waldeck in para. 21 of the statement of claim in the 2019 proceedings, it is appropriate to note that the plaintiff was never a party to the 21 March 2011 Agreement between Waldeck and Rothschild (which the latter terminated on 21 September 2012).

 

114.      Similarly, with respect to para. 22 of the statement of claim, the plaintiff was not a party to the 2 November 2011 Contract between Balthazar and Archimedes (which the latter terminated on 21 August 2012). The rule in Foss v. Harbottle is of obvious relevance and will be looked at further in due course.

 

115.      Before proceeding with the chronology, it is fair to say that this latest set of proceedings constitutes a reformulation of claims previously articulated in (i) the 2012 Proceedings by Balthazar and Waldeck; (ii) the 2018 complaint by the plaintiff to the Solicitors Disciplinary Tribunal; and (iii) in the 2019 Rothschild Proceedings. I now return, again, to the chronology.

20 November 2019

Plaintiff's complaint to the LSRA against 1^st defendant

116.      On 20 November 2019, the plaintiff made a further complaint, this time to the Legal Services Regulation Authority ("LSRA"), which began as follows:-

 

"Dear LSRA,

I would like to highlight for your attention an example of potential misconduct by Fanning Kelly Solicitors.

 

For the record, Mr. Kelly has no mandate to represent my company Yahweh Holdings (Waldeck), does not have valid instructions, is damaging my company, has discontinued my company's proceedings (case ref. no. 2012/13086P) - three years later cancelled same - against defendants that are also Fanning Kelly clients, did not abide by Law Society AML & KYC regulations, ignored Law Society conflict of interest regulations, refused access to my files and will not afford me the opportunity to prove control and ownership of my company..." (emphasis added).

 

117.      It can fairly be said that the plaintiff's core complaint to the LSRA is that the instructions on foot of which Fanning & Kelly acted were not, according to him, "valid instructions". This is, of course, the same assertion made in the plaintiff's 2018 complaint to the Solicitors Disciplinary Tribunal, and in the 2019 proceedings. 

 

28 September 2021

Further complaint to the LSRA against 1^st Defendant

118.      On 28 September 2021, the plaintiff also made a second complaint to the LSRA against Mr. Kelly. The plaintiff indicated that he was making this complaint on behalf of Balthazar. It will be recalled that, on 1 May 2018, Balthazar was struck off the register in the BVI for the third and final time, for non-payment of fees.

 

119.      The 2021 LSRA complaint repeated matters raised by the plaintiff in his 2018 complaint to the solicitor's disciplinary tribunal. Central to the complaint was alleged "documented forgery and deception". Mr. Kelly provided a detailed written response to the complaint (reference 19/2392). 

 

LSRA Decision

120.      The decision by the LSRA was communicated to Mr. Kelly by letter dated 13 March 2023, as follows:-

 

"19/2392

 

Complaint made to the Legal Services Regulatory Authority - Juerg Von Geitz

Dear Mr. Kelly,

 

I refer to the above and to previous correspondence issued by the LSRA to you in the matter. As you are aware this complaint has been referred to a Divisional Complaints Committee ("the Committee") for investigation. 

 

Following a full and thorough investigation under S70 of the Legal Services Regulation Act, 2015, and having considered all the information provided, the Committee determined that the alleged acts or omissions the subject of this complaint, are not ones to which section 71(7) of the LSRA Act 2015 apply nor are they ones for which a sanction is appropriate.  The reason for this decision is as follows:-

 

1.    After careful consideration of all documentation submitted the Committee finds that Mr. Von Geitz has not established to the satisfaction of the Committee any wrongdoing on behalf of Mr. Kelly;

 

2.    After careful consideration of all documentation submitted the Committee finds that Mr. Von Geitz has not established to the satisfaction of the Committee any conflict of interest on behalf of Mr. Kelly;

 

The Committee also note Mr. Von Geitz's response, by email dated 6 March, to Mr. Kelly's reply to Mr. O'Higgin's report. However, the Committee are of the view that the requests made of the Committee are not appropriate.

 

This complaint is now closed." (emphasis added).

 

 

 

Vindication

121.      In objective terms, the foregoing comprises a complete vindication of the first named defendant in respect of the allegations made by the plaintiff (allegations which continue to feature in both sets of proceedings which are the subject of the within motions).

 

28 September 2021

LSRA complaint against 11^th Defendant

122.      The plaintiff also made a formal complaint to the LSRA, on behalf of Balthazar, against the 11^th defendant, on 28 September 2021. Having carried out a preliminary review of the plaintiff's complaint, pursuant to s. 57 of the Legal Services Regulation Act 2015, the LSRA issued a written determination, dated 21 June 2022, which stated inter alia the following:-

 

"This is a complaint of inadequate services, arising from a court case. Mr. Von Geitz is making the complaint on behalf of a company and has permission to do so, the company was a client of Mr. Lynch and his firm. The complaint is formed of three main allegations.  He alleges;

·         Mr. Lynch's firm refused to reconstitute proceedings 2012/13086P.

·         Mr. Lynch's firm failed to object or challenge on 03 August 2016 to the Other Party Solicitors notice of discontinuance and change of solicitors notifications in proceedings 2012/13086P.

·         Mr. Lynch's firm was negligent to not report an alleged conflict of interest violation by the other party solicitors to the LSRA, post receipt of a change of solicitors notification from the other party solicitors on 17 July 2019..."

 

"With regard to admissibility the following determinations arise from the preliminary review, on the basis of the information and documentation provided.

(1)  Mr. Von Geitz's company were clients of the firm.

(2)  The Authority is of the opinion that the complaint is frivolous or vexatious (namely, that the facts alleged, if proved, could not result in a finding against the legal practitioner under Part 6 of the Legal Services Regulation Act, 2015) because the nature of the allegations of inadequate service could not in all the circumstances amount to a finding against the legal practitioner under the Act.

-          In respect of number 1, Mr. Von Geitz has requested that Mr. Lynch 'reconstitute' the proceedings. Mr. Lynch has submitted that the proceedings had stagnated and that he had not been the solicitor dealing with the file prior to the end of 2019. It is confirmed that Mr. Von Geitz took back his file and discharged the outlay fee on the file on or about October 2018, which Mr. Von Geitz has acknowledged. Mr. Lynch has asked for the issue of fees to be set out, and Mr. Von Geitz wished to engage on a no fall no fee basis, which Mr. Lynch alleges is not satisfactory. Mr. Lynch is entitled to apply to come off record in the circumstances and is under no obligation to stay on record. Mr. Lynch does not need Mr. Von Geitz's consent to do so.

-          In respect of the second allegation that Mr. Lynch's firm should have objected to the notice of discontinuance and change of solicitors from the other party. Mr. Lynch was not involved with the file at the time, and in (sic) this matter is out of time. 

-          In respect of the complaint that Mr. Lynch's firm should have reported the conflict of interest violations, Mr. Lynch was not involved with the file at the time that this matter arose. Furthermore, from the evidence submitted by Mr. Von Geitz and Mr. Lynch, Mr. Von Geitz had withdrawn his instructions on the file prior to this conflict of interest becoming clear. It is open to Mr. Von Geitz to make such complaint to the Law Society himself. A solicitor has the liberty not to act for a client and in the circumstances, it is open to a client to instruct a new solicitor to act for him."

 

Ombudsman

123.      The LSRA's 21 June 2022 Determination was furnished to Whitney Moore under cover of a letter, dated 1 July 2022, which noted that the plaintiff had also been informed of the decision and that it was open to the plaintiff to request that the Office of the Ombudsman review the administrative actions of the LSRA in dealing with the complaint. There is no evidence that the plaintiff made any such request to the Office of the Ombudsman. 

 

124.      Despite the LSRA's decisions, the matters complained feature, to this day, in both the 2019 and 2022 proceedings. As regards the chronology, we have now reached the point at which the 2022 proceedings were commenced.

08 August 2022

Plaintiff issues the 2022 Proceedings

125.      The plenary summons in the 2022 Proceedings was issued on 08 August 2022 by the plaintiff, representing himself. The general endorsement of claim puts the plaintiff's claim as follows:

 

"THE PLAINTIFF'S CLAIM IS FOR:-

1.         Damages for unlawful means conspiracy, negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interests and duty of care."

 

126.      As pleaded in the amended statement of claim delivered on 31 October 2023, the plaintiff claims:-

 

"A.        Damages for unlawful means conspiracy, (professional) negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interests and duty of care." (emphasis added).

 

127.      It is clear from the amended statement of claim, that the foundation for the proceedings comprises the contractual arrangements entered into by Waldeck and Balthazar, respectively. At para. 4 of the amended statement of claim the plaintiff pleads: -

 

"4.        The plaintiff constituted Waldeck in Gibraltar on 26 January 2011 as the Rothschild agent for Ireland. The stakeholders comprised the plaintiff owned Balthazar Holdings with 65 shares and Charms with 35 shares. Balthazar was its sole director. For the avoidance of doubt, Mr. Kelly's purported instructing mandate, Charms, was not a director and was purportedly appointed by the digital superimposition of the plaintiff's alleged signature on company formation documents." (emphasis added).

 

128.      At para. 6 of the amended statement of claim the plaintiff pleads inter alia:-

 

"6.        Rothschild and Mr. Robertson did not honour the agreed agency commission payments with the plaintiff and transferred the Waldeck commissions to its subsidiary Archimedes..."

 

Third bite at the cherry

129.      In oral submissions, the plaintiff denied that the 2022 proceedings were an attempt at a 'third bite at the cherry' (the first having been the 2012 proceedings brought by Balthazar and Waldeck; the second having been the 2019 Rothschild proceedings brought by the plaintiff). In my view, the metaphor is entirely apt.

 

130.      In the manner explained in this judgment, the 2022 Proceedings comprise a further re-formulation of claims articulated, variously, in: - (i) the 2012 Proceedings; (ii) the plaintiff's 2018 complaint to the Solicitors Disciplinary Tribunal; (iii) the 2019 Rothschild Proceedings; (iv) the 2019 Proceedings; and (v) the plaintiff's 2019 and 2021 complaints to the LSRA. Furthermore, and of most relevance, the alleged losses are those of corporate entities, Waldeck and/or Balthazar. 

 

Perjury and lies

131.      Before continuing to look at the statement of claim in the 2022 proceedings, it should be noted that in opposing both applications, the plaintiff submits that: "These motions are premised on perjury and lies".   

 

132.      The foregoing was characteristic of the assertions made by the plaintiff in (i) affidavits, (ii) written submissions, and (iii) in oral submissions in relation to both applications. Nor were assertions of this type confined to the defendants named in the proceedings.

 

Forgery of plaintiff's signature appointing Charms as director of Waldeck

133.      In support of the assertion that others are telling "lies", committing "perjury", and engaging in "fraud", the plaintiff made, inter alia, the following oral submission at the hearing, in relation to the role of Charms as shareholder and director of Waldeck:

 

"I agreed to Ralph Charles being part of the structure. I never signed the forms regarding Charms" (emphasis added).

 

Sole director

134.      The same point was made by the plaintiff in a variety of ways. In addition to pleading at para. 4 of the statement of claim that Balthazar was the "sole director" of Charms, the plaintiff avers and submits inter alia the following:-

 

"Charms Ltd., the source of Mr. Kelly's purported Waldeck mandate, did not sign the document, appointing it as a director of Waldeck..." (emphasis added)

[see para. 5 of the plaintiff's affidavit sworn on 5 November 2024];

 

"28/01/11 Charms Limited purportedly appointed a director of Waldeck by fabricating the plaintiff's signature...

 

01/08/16 Robertson/Archimedes/Rothschild via Charms Limited, the purported sole director of Waldeck, fabricated the Waldeck mandate and instructed Fanning & Kelly to act on behalf of Waldeck."

 [see "Plaintiff chronology of relevant facts (plaintiff amendments in bold)"].

 

Fabricated

135.      In the foregoing manner, the plaintiff contends that he did not agree to Charms being a shareholder or director of Waldeck and that his signature was forged or fabricated on the documents which appointed Charms as director. Thus, the plaintiff contends, Charms was never validly appointed and, hence, his argument goes, the instructions given by Charms to Mr. Kelly and his firm were not valid.

 

136.      However, these assertions are impossible to reconcile with the following sworn statements by the plaintiff: -

 

"It was represented to the plaintiff by Mr. Robertson that Mr. Charles was the owner of Charms and that such was necessary to secure the Rothschild agency. In hindsight, the plaintiff was naïve, believing this false representation."

[see para. 11 of the plaintiff's affidavit sworn on 9 December 2024].

 

137.      Thus, the plaintiff simultaneously asserts that he did not agree to Charms being involved and avers that it was represented to him that Charms was an essential element of the commercial arrangements (i.e. "necessary to secure the Rothschild agency") and that he naïvely accepted this.

 

138.      Furthermore, as noted earlier, the statement of claim delivered, on 21 December 2012, in the 2012 contains the following explicit pleas:-

 

"9.  On 15 December, 2010, Waldeck was incorporated for the purpose of carrying out the agency business for the Rothschild bank. The directors and shareholders of Waldeck were 65% Balthazar and 35% Charms Limited (a company incorporated and owned by Ralph Charles)." (emphasis added).

 

139.      On the plaintiff's account, the foregoing pleas reflect instructions which he gave to Whitney Moore, in 2012. As the plaintiff puts it in the "Plaintiff chronology of relevant facts" (plaintiff amendments in bold):-

 

"01/10/12 Juerg Von Geitz on behalf of Waldeck and Balthazar, instructs Whitney Moore... to issue the 2012 proceedings...

 

21/12/12 Balthazar & Waldeck commenced the 2012 proceedings against Mark Robertson, Archimedes Private Office Limited and Edmond De Rothschild seeking damages for wrongful termination, negligent misstatement etc. of the Contract and the 2011 Agreement represented by Whitney Moore..."  (emphasis in original).

 

Irreconcilable

140.      In short, for the purpose of the 2012 proceedings, the plaintiff instructed a firm of solicitors and Counsel to plead that Charms was a director of Waldeck, yet for the purpose of the present proceedings he asserts the very opposite.

 

141.      At the risk of stating the obvious, there can be no credible basis for suggesting that the facts are as asserted by the plaintiff, in circumstances where he also asserts the very opposite.  

 

142.      In particular, the plaintiff's plea, at para. 4 of the statement of claim in the 2022 proceedings, that Balthazar was the "sole director" of Charms, is both fundamental to his claim and lacking all credibility.

 

143.      It can also be said that, whilst the plaintiff blames himself for a naïveté and blames Mr. Robertson from making a false representation that Charms was necessary, in the 2022 proceedings he also sues solicitors for doing no more or less than acting on the instructions of Charms. I will presently look at jurisprudence of relevance to this issue.

 

144.      The allegation that the plaintiff's signature was fabricated on the document appointing Charms as a director of Waldeck could hardly be more serious. Yet, the plaintiff has not adduced a shred of evidence which would provide any credible basis for the assertion of fraud. This is wholly unsurprising, given: -

(i)            the explicit plea in the 2012 proceedings that Charms was a director of Waldeck;

(ii)           the averment by the plaintiff in the 2022 proceedings that he believed the representation that Charms was necessary; and

(iii)         the objective record provided by the BVI Companies Register which makes clear that Charms was both a director and shareholder of Waldeck at all material times.

 

145.      The assertion that Charms was never validly appointed as a director of Waldeck and that the plaintiff's signature was forged, by being superimposed on the documentation which appointed Charms as director, is an assertion made by the plaintiff both 'late in the day' and in the face of all evidence to the contrary.

 

146.      It gives me no pleasure to say so but the inescapable conclusion is that the plaintiff is prepared, in legal proceedings, to misrepresent the facts as he knows them to be, because it better suits the narrative which the plaintiff wishes to advance at that point in time. Unfortunately, the making of extremely serious but entirely unsubstantiated allegations is characteristic of the plaintiff's approach to the proceedings at issue.

 

Solicitor acting on instructions

147.      The central allegation made in the 2022 proceedings (also made in the 2019 proceedings) is that a solicitor (Mr. Kelly, of Fanning & Kelly) acted, as such, on foot of instructions given by a client (Charms, as director of Waldeck).

 

148.      This can be seen from the following pleas in the plaintiff's amended statement of claim in the 2022 proceedings (emphasis added):-

 

"On 3^rd August 2016, Mr. Kelly, by letter, wrote to... Whitney Moore Solicitors and wrongfully notified Fanning & Kelly had 'been instructed by Waldeck'." (para. 12);

 

"Mr. Kelly further advised Whitney Moore that Charms - the purported and automatically vacated non-director of Waldeck - had instructed him and that he had filed a notice of change of solicitor for Waldeck with the Central Office of the High Court. Mr. Kelly wrongly asserted... that the controlling majority shareholder and sole director of Waldeck, Balthazar, had been struck off the register of companies for the British Virgin Islands..." (para. 15);

 

"On 10^th August 2016, Mr. Kelly delivered to Whitney Moore a copy of the notice of discontinuance under cover letter, which notified that Mr. Kelly had filed same on behalf of Waldeck in the Central Office of the High Court..." (para. 18);

 

"Mr. Kelly did not have the authority to represent Waldeck..." (para. 21);

 

"Mr. Kelly purported to make representations on behalf of Waldeck. He delivered filings to the Central Office of the High Court purporting to represent Waldeck when, in fact, Mr. Kelly had no lawful authority to do so..." (para. 22);

 

"Having purported to act on behalf of Waldeck and taken control of the proceedings issued by Waldeck, Mr. Kelly was obligated to act in the interests of Waldeck. Mr. Kelly performed adverse and contrary - unopposed, aided and abetted by Whitney Moore - to the interests of Waldeck" (para. 26);

 

"Mr. Duggan and all LSRA registered equity partners at Flynn O'Driscoll, on numerous occasions, were complicit in their disregard of the incontrovertible evidence that corroborated Mr. Kelly/Flynn O'Driscoll did not have the lawful authority or mandate to represent Waldeck." (para. 29).

 

149.      The plaintiff's claim against the eleventh named defendant is, in essence that Whitney Moore did not challenge the instructions given to Fanning & Kelly. Para. 33 of the plaintiff's amended statement of claim in the 2022 proceedings states:

 

"Whitney Moore's zombie legal representation of its clients Waldeck and Balthazar Holdings acting in unison with Flynn O'Driscoll.

 

33.       Whitney Moore's managing partner, John Lynch, at all times, declined to hold Mr. Kelly or the Fanning & Kelly 'succeeding practice' Flynn O'Driscoll LLP to account.  Presently, Whitney Moore is allegedly sentient, though senseless and declines to act on record for Balthazar. Mr. Lynch, too, rejected, among many requests and pleas for action, to seek judgment in default of appearance against Mr. Robertson or to report illegal acts by Mr. Kelly or Flynn O'Driscoll to the LSRA. Mr. Lynch did not honour the 'no foal - no fee' Waldeck and Balthazar commercial agreement settled with Whitney Moore and its former partner Mr. Parker. Whitney Moore's actions are de facto to aid and abet Mr. Kelly and Flynn O'Driscoll LLP in its purported representation of Waldeck, and Balthazar are incomprehensible, GUBU and likely unlawful." (emphasis added).

 

'No foal no fee'

150.      I pause to say that the plaintiff has exhibited no correspondence of any kind (be that copy email; text message; letter; phone-call 'attendance note'; or otherwise) purporting to evidence any agreement by the eleventh defendant to act for either Waldeck or Balthazar in the 2012 Proceedings on 'no foal, no fee' basis. To the extent that a solicitor is said to have agreed this, no evidence from them is proffered. Furthermore, the retainer between solicitor and client including the particular financial aspects can be of no relevance to the plaintiff, who acknowledges that he was not a client of the eleventh defendant, or any defendant, in the 2012 proceedings (the clients/plaintiffs being Waldeck and Balthazar).

 

'Many requests and pleas for action'

151.      Similar comments apply in relation to "many requests and pleas for action", in that the plaintiff has chosen not to exhibit any correspondence which evidences any alleged requests that Whitney Moore pursue judgment in default against Mr. Robertson.

 

152.      Nor does the plaintiff identify any dates on which these instructions were supposed to have been furnished. In circumstances where, as a matter of fact Mr. Robertson was not served with the renewed summons in the 2012 Proceedings until October 2016, any requests to pursue judgment in default could only have occurred after October 2016.

 

153.      The state of the evidence is that no instructions were given between October 2016 and October 2018 to Whitney Moore by any party on behalf of Balthazar, to progress the 2012 Proceedings against Mr. Robertson and/or Archimedes.

 

154.      Two further comments are appropriate. First, Balthazar could have engaged an alternative firm of solicitors at any point, to carry out such actions. Second, any alleged harm for any supposed failure to carry out Balthazar's instructions is harm to that entity, not to the plaintiff. 

 

Understanding the plaintiff's claim

155.      A clear understanding of the plaintiff's complaints against all eleven defendants in the 2022 proceedings can be seen from his "Replies to Whitney Moore Notice of Particulars", dated 1 June 2024, wherein the plaintiff pleads:-

 

"Whitney Moore is the only solicitor validly appointed in Ireland by the board of Waldeck..." (18.i);

 

"Only Whitney Moore had the authority to deliver filings on behalf of Waldeck and Balthazar Holdings to the Central Office of the Hight Court. Fanning Kelly/FOD acts illegally for Waldeck" (19.ii);

 

"A solicitor, Kelly, acting on a fake mandate, aided and abetted by Whitney Moore" (19.vii);

 

"Mr Duggan and his partners at FOD are Kelly's enablers in the unlawful means conspiracy fraud against the Plaintiff's company Waldeck" (20.xxii);

 

"Kelly took control of the proceedings by issuing a false and unlawful Change of Solicitors' notifications. When Whitney Moore did not challenge this, he issued a further false Notification of Discontinuance in proceedings 2012 13086P..." (21.xxiv);

 

"Kelly's acts, purportedly on behalf of Waldeck, were against the interests of Waldeck..." (21.xxv);

 

"Whitney Moore was always absent of action and/or aiding and abetting Kelly/FOD" (21.xxvii).

 

 

Moffitt v Bank of Ireland

156.      For reasons which will soon become clear, Counsel for the defendants place particular reliance on the judgment of the Supreme Court in Moffitt v Bank of Ireland [Supreme Court, Keane J. unreported 19 February 1999] ("Moffitt"). As to the facts, the plaintiffs in Moffitt alleged that the defendant bank wrongfully converted to its own use the proceeds of a fire policy resulting from a fire at the plaintiffs' home. The plaintiffs also sued the bank's solicitor. It was not in dispute that the solicitor was acting qua solicitor for the bank. It was alleged that an affidavit which the solicitor may well have drafted, and which he certainly arranged to be sworn and filed on behalf of his clients, was "false". 

 

Incorrect or false instructions

157.      Analysing the legal position, Mr. Justice Keane stated:-

 

"The fact that the second named defendant a solicitor arranged for the swearing of an affidavit which subsequently turns out to be false, if indeed it is false, affords no cause of action whatever against the solicitor. The solicitor merely acts on his instructions. His instructions may be correct or they may be incorrect, but he must act in accordance with his instructions. If those instructions are incorrect or false then, of course, that may give a cause of action to Mr. and Mrs. Moffitt as against the Bank, but it gives them no cause of action whatever against the solicitor who is merely discharging his professional duties to the client that he is acting for and to whom he owes a duty, namely, the bank." (emphasis added).

 

158.      In the present case, the relevant instructions were, as a matter of undisputed fact, given by Charms (qua director of Waldeck), to Fanning & Kelly (qua solicitors). Mr. Kelly and his former firm acted upon those instructions. The plaintiff does not appear to assert that the first named defendant or Fanning & Kelly were under any duty to refuse those instructions or to query the authority of Charms to give the instructions. 

 

159.      The plaintiff's complaint is that Charms should not have given these instructions, or lacked authority to give "valid" instructions. If this is a complaint which can be directed by the plaintiff at Charms, is certainly not a complaint for a solicitor who acted qua solicitor in accordance with the instructions given (even if, per Moffitt, the instructions were "incorrect" or "false"). 

 

160.      Turning to the position of the eleventh named defendant, it will be recalled that Whitney Moore was originally instructed to act on behalf of Balthazar and Waldeck in the 2012 proceedings.  It is common case that Whitney Moore received a letter from Fanning & Kelly on 3 August 2016 in which a notice of change of solicitor was served on behalf of Waldeck.

 

161.      Putting to one side the crucial issue that the plaintiff is neither Balthazar nor Waldeck, he makes no complaint as to how the 2012 proceedings were conducted by the eleventh defendant up to that point. In the manner explained earlier, an issue as to jurisdiction arose and, as of 3 November 2015, the 2012 proceedings were struck out, on consent, against Rothschild. This was in circumstances where Balthazar and Waldeck accepted that there was a jurisdictional issue fatal to the claim. The evidence before me makes clear that, following the striking out of the proceedings as against Rothschild, the eleventh defendant received no further instructions from either Balthazar or Waldeck.

 

162.      Upon receipt of the notice of change of solicitor, Whitney Moore no longer had authority to continue to act on behalf of Waldeck. A notice of discontinuance was served by Waldeck, on 10 August 2016, in respect of the 2012 proceedings. The plaintiff has proffered no basis, in fact or in law, for the proposition that either Fanning & Kelly or Whitney Moore owed a duty to him (i) to reject, challenge or 'look behind' the instructions; or (ii) to refuse to take steps in accordance with the instructions. Nor has the plaintiff produced a shred of evidence to support the assertion that he called upon Whitney Moore to object to the notice of change of solicitor/notice of discontinuance, which Fanning & Kelly delivered, on foot of instructions

 

163.      Furthermore, in the manner explained by Cregan J. in the 2023 judgment, the 21 March 2011 agreement between Waldeck and Rothschild was governed by Swiss law and conferred jurisdiction in relation to any dispute arising from the agreement on the courts of "Geneva canton" subject to appeal to the "Swiss Federal Tribunal". The plaintiff's oral submissions included a statement to the effect that "we made a mistake on jurisdiction". As Mr. O'Donnell for the eleventh named defendant submits, if the jurisdictional issue was fatal to Waldeck's claim against Rothschild, it must follow that it was equally fatal to Waldeck's claim against Archimedes and Mr. Robertson. Mr. O'Donnell also points out that the appearance filed by the latter on 22 December, 2016 was 'conditional' for the purpose of objecting to jurisdiction.  

 

164.      Apart from the obvious force in the foregoing submission, the principles articulated in Moffitt make clear that the plaintiff has no cause of action whatsoever against any of the defendants in the 2022 proceedings. All were acting, qua solicitors, on instructions. Whereas, at para. 4 of the plaintiff's affidavit sworn on 4 December 2024, he avers inter alia that "Whitney Moore is the only validly appointed solicitor to Waldeck", this is simply a 'bald' assertion which is utterly undermined by the facts.

 

165.      In oral submissions the plaintiff also asserted that a former partner in the eleventh defendant told the plaintiff that he would object to Whitney Moore coming off record for Waldeck. No affidavit was provided by the person in question. The plaintiff went on to submit that this individual has apologised for not doing so. According to the plaintiff, this was something which "slipped through his fingers". The plaintiff went on to submit that his communication with the individual concerned was via text and phone calls and that "there were emails" but these have been "lost" due to the plaintiff's computer being destroyed. However, even if the plaintiff had produced, in opposition to the present motions, correspondence dating from 2016 in which he had (i) called upon Fanning & Kelly Solicitors not to act on foot of the instructions given by their client; and (ii) called upon Whitney Moore to object to a notice of change of solicitors served on foot of instructions, the plaintiff would still face at least two insurmountable difficulties.

 

Crowley v. Ireland & Ors

166.      First, at all material times the solicitors in question were acting qua solicitors (i.e. for, not independently of, their clients). In this regard, the judgment of this Court (Stack J.) in Crowley v. Ireland & Ors [2022] IEHC 596 ("Crowley") is relevant. There, the learned judge dismissed the plaintiff's claim against a named firm of solicitors which allegedly conspired with either Bank of Scotland or Start Mortgages to obtain an erroneous order renewing an execution order. As the learned judge made clear (at para. 112) in Crowley, the solicitors:

 

"...were providing legal services - presumably for a fee. In the course of providing those services, an error was made. But that is not a conspiracy between two independent actors to cause damage to another. It is a mistake made by an agent acting on behalf of his or her principal."

 

167.      The learned judge went on to say the following from para. 114 onwards:

 

"114. In my view, even if in this case the solicitors acting for Start Mortgages made an error, they did so in the course of their professional duties to the client, and there are no stateable grounds for saying that this could be actionable as a tort of conspiracy by the other party to the litigation.

 

115. There was a reference by counsel for the plaintiff in argument to Doran v. Delaney [1998] 2 I.R. 61, where, exceptionally, a purchaser succeeded in a claim of negligent misrepresentation against the vendor's solicitors. But no basis for establishing that a duty of care owed by Ivor Fitzpatrick to the plaintiff was set out in submissions. Doran v. Delaney was itself a Hedley Byrne v. Heller type case of reliance on misrepresentation, in that case to a purchaser by a vendor's solicitor in replies to requisitions, where the vendor's solicitor was himself aware that the reply was inaccurate. No such representation exists here and the events surrounding the renewal of the execution order all point to an error by a solicitor in carrying out the instructions of the client. As Keane J. stated in Moffitt, the duty owed by the solicitor is to his or her own client, not to the other party to adversarial proceedings.

 

116. That being the case, I will dismiss the proceedings as against Ivor Fitzpatrick as being an abuse of process, frivolous and vexatious, and doomed to fail."

 

168.      What the plaintiff characterises as "conspiracy" is nothing of the sort. The correct analysis is that solicitors acted in accordance with instructions given to them qua solicitors. The plaintiff clearly has an issue with those who gave the instructions, but has no cause of action against the solicitors for acting on foot of same.  

 

169.      This Court's decision in Crowley was the subject of an appeal and, delivering judgment on behalf of the Court of Appeal, Allen J. stated the following in Crowley v. Ireland & ors [2023] IECA 247 (at para. 66):-

 

"66. As to Ivor Fitzpatrick, the argument is that the judge failed to apply what is asserted to have been the reasoning of the Supreme Court in Doran v. Delaney (No. 2) [1998] 2 I.R. 61 which - it is said - "affirmed a duty of care to a third party on the part of a solicitor ... not to take blind instructions from a client without enquiry."  It did not. As appears from the headnote, the decision in Doran v. Delaney (No. 2) was that "where a vendor's solicitor has assumed responsibility for furnishing information to the purchaser in a professional capacity knowing that that information would be relied upon by the purchaser while having reason to believe that it was not wholly truthful, he was in breach of their duty of care to the purchaser." As the High Court judge spelled out, it was no part of Mr. Crowley's case that Ivor Fitzpatrick had ever said anything to him, or that he had relied on anything that was said - or not said - to the County Registrar. Moreover, the premise of the proposition that Ivor Fitzpatrick took "blind instructions" is that Start instructed the solicitors to apply for the renewal of the execution order in the name of the Bank. This, it seems to me, is fanciful and, as I have observed, there is no appeal from so much of the order of the High Court as dismissed the claims against Start for damages for conspiracy, misrepresentation and negligence."

 

170.      In the present case, the plaintiff does not assert that any solicitor took 'blind instructions',  rather, he contends that Charms lacked the authority to give valid instructions, in particular, because Charms was not a director of Waldeck. For the reasons explained, that is an assertion which lacks all credibility.

171.      As noted earlier, the 2012 proceedings specifically plead that Balthazar and Charms were the directors of Waldeck. Furthermore, in proceedings brought in the BVI between Archimedes (as claimant) and Balthazar (as defendant) bearing record number BVI HCV (COM) 2013/133, the defence filed by Mr. Von Geitz on behalf of Balthazar (which comprises exhibit "JVG5" to the plaintiff's affidavit, sworn on 5 December 2024, in the 2019 proceedings herein) states:-

"2.        On 15 December, 2010, Waldeck was incorporated for the purpose of carrying out the agency business for Rothschild Bank. The directors and shareholders of Waldeck were 65% Balthazar Holdings Limited and 35% Charms Limited (a company incorporated and owned by Ralph Charles)." (emphases added).

 

172.      Therefore, not only were the solicitors in question acting on foot of instructions, the premise of the argument that Charms lacked authority to give valid instructions (i.e. that Charms was not a director of Waldeck) is false, as the plaintiff well knows. It is demonstrably false when one has regard to the objective information provided by the BVI Registrar of Companies.

 

Client

173.      The plaintiff acknowledges that he was never a client of any of the defendants in the 2022 proceedings. As noted earlier, however, the plaintiff also seeks damages for "negligence"; "breach of fiduciary duty" and "duty of care". He does so with purported reliance on Wall v. Hegarty [1980] ILRM 124.  In light of the analysis by Hogan J. in the Court of Appeal's judgment in Smith v. McCarthy & Ors [2017] IECA 167 ("Smith") these claims are doomed to fail. At para. 29 in Smith, Hogan J stated:-

 

"29. It is clear that a solicitor retained by a client undertakes certain professional obligations towards him. If the solicitor has discharged those duties in an unsatisfactory manner the client may have a remedy in both contract and in tort: see Finlay v. Murtagh [1979] I.R. 249. There may, however, be special cases where a solicitor owes a duty of care to third parties, of which the disappointed legatee cases provide the most clear-cut example. As Henchy J. explained in his judgment in Finlay ([1979] I.R. 249, 257):

 

"....the general duty of care created by the relationship of solicitor and client entitles the client to sue in negligence if he has suffered damage because of the solicitor's failure to show due professional care and skill, notwithstanding that the client could sue alternatively in contract for breach of the implied term in the contract of retainer that the solicitor will deal with the matter in hand with due professional care and skill.

 

The solicitor's liability in tort under the general duty of care extends not only to a client for reward, but to any person for whom the solicitor undertakes to act professionally with reward, and also to those (such as beneficiaries under a will, persons entitled under an intestacy, or those entitled to benefits in circumstances such as a claim in respect of a fatal injury) with whom he has made no arrangement to act but who, as he knows or ought to know, will be relying on his professional care and skill. For the same default there should be the same cause of action. If others are entitled to sue in tort for the solicitor's want of care, so also should the client; that is so unless the solicitor's default arises not from a breach of the general duty of care arising from the relationship but form a breach of a particular and special term of the contract in respect of which the solicitor would not be liable if the contract had not contained such a term. Thus, if the client's instructions were that the solicitor was to issue proceedings with a specified time, or to close a sale by a particular date, or generally, any resulting right of action which the client might have would be in contract only unless the act or default complained of falls within the general duty of care owed by the solicitor."

 

Paragraphs 30-35 from the Court of Appeal's decision in Smith are particularly relevant:-

 

"30.      In Wall v. Hegarty [1980] I.L.R.M. 124 Barrington J. held that a solicitor taking instructions from a testator owed the potential beneficiaries a duty of care to ensure that the formalities required by the Succession Act 1965 were duly complied with, 'so that the wishes of the legator are not frustrated and the expectancy of the legatee defeated.'

 

31.       The decision in Wall is, however, an exceptional one and its rests squarely on the fact that there is a specific duty towards a defined class of persons at given point of time in respect of a particular legal transaction, namely, the execution of a will. As Barrington J. explained ([1980] I.L.R.M. 124, 129):

'...there is a close degree of proximity between the plaintiff and the defendant. If a solicitor is retained by a testator to draft a will and one of the purposes of the will is to confer a benefit on a named legatee, the solicitor must know that if he fails in his professional duty properly to draft the will, there is a considerable risk the legatee will suffer damage. [The solicitor's] contemplation of the plaintiff is actual, nominate and direct.'

 

32.       Beyond that, however, the courts have rarely ventured any further. In particular, the solicitor's duty of care has not been broadened beyond the special categories envisaged by the Supreme Court in Finlay and by Barrington J. in Wall. A contemporary illustration of this is provided by Adigun v. McEvoy [2013] IEHC 342. Here a company controlled by the plaintiff sought legal advice from the defendant solicitor for the purposes of pursuing a copyright infringement claim by the company. Hedigan J. held that the advice had been given to the company qua client and that the plaintiff - as distinct from the company - had no entitlement to sue the solicitor in his own right:

 

'Mr. Adigun urges on the Court that he was paid by the company and was in the same category as the beneficiary in a will suit in the case of Wall v. Hegarty [1980] I.L.R.M. 124 in that the solicitors owed him, as a beneficiary of the company, a duty of care just as the solicitor in Wall owed a legatee a duty of care to draft a will properly. However, I am not satisfied that these two situations are similar ones. No corporate entity intervened between the solicitor and the legatee in Wall. One does exist herein. Here, if the client was in fact the company and not Mr. Adigun then no privity exists between him and its solicitors. The fact Mr. Adigun stood to benefit from whatever monies came the company's way does not establish a duty of care between the solicitors for the company and him. He is in no stronger or weaker a position than any other member of the company. The dispute existing was between the company and the Abbey [Theatre] and it was the company that stood to gain or lose thereby.'

 

33.       In the present case the plaintiff had no privity with Mr. Collins and, accordingly, he owed her no general duty of care. It is true that in the event that her father were to pre-decease her and it transpired that his will was ineffective to carry out his wishes qua legator, the plaintiff could doubtless sue under the principle of Wall v. Hegarty. Beyond that, however, Mr. Collins owed the plaintiff no duty of care.

 

34.       Independently of authority, the wide-ranging duty of care contended for would, in any event, be inconsistent with general principles of tort law. The imposition of such a broad duty of care - to ensure that her parents did not suffer any financial losses in their dealings with ACC - would effectively impose precisely the same duties on Mr. Collins vis-à-vis the plaintiff as if she had retained him on a professional basis. Even if she had so retained him, he would have owed her no separate duty in that regard than that which he already owed her parents qua clients.

 

35.       In short, the duty contended for here is open-ended and indeterminate and it lacks the quality of immediacy and directness which grounded the particular and specific duty of care in Wall v. Hegarty. As I have just pointed out in the companion appeal in respect of Ms. June Smith's (this plaintiff's mother) claim in negligence against the Law Society arising from these events, the courts have always set their face against admitting claims derived from the imposition of an indeterminate duty to a potentially indeterminate class, regardless of considerations of proximity, foreseeability and remoteness." (emphasis added).

 

174.      Not only has the Supreme Court in Moffitt rejected the existence of the cause of action which the plaintiff contends for, the Superior Courts have set their face against the 'open - ended' duty which the plaintiff asserts. This case certainly does not come within any of the "special categories' envisaged by the Supreme Court in Finlay and by Barrington J. in Wall. Nor is this a situation of "immediacy and directness". Far from it. There are corporate entities standing between the plaintiff and the solicitors who took instructions from the relevant company, and any loss is that of a company.  

 

Not "as illicit"

175.      Among the oral submissions made by the plaintiff was to say: "I don't think Whitney Moore was as illicit as Fanning and Kelly. I think they just 'dropped the ball'" and "I don't ascribe the same illegality to Whitney Moore as to Fanning Kelly".

 

176.      Despite these oral submissions, the essence of the pleaded claim is that Whitney Moore conspired with and aided and abetted Mr. Kelly and Flynn O'Driscoll in representing Waldeck and that all defendants are liable to pay damages for unlawful means conspiracy, professional negligence, breach of fiduciary duty, breach of contract, negligent misstatement, conflict of interests and duty of care.

 

177.      Furthermore, in his affidavit sworn as recently as 4 December 2024 the plaintiff makes a range of averments alleging the most serious of wrongdoing on the part of all the defendants, including Whitney Moore. The following example will suffice:

 

"...Whitney Moore not only aided Mr. Kelly but also acted in an unapproved joint legal partnership representing the plaintiff's companies from 2016 to the present day. Whitney Moore's actions are more than mere negligence; they are a clear case of active complicity, aiding, and likely abetting ..."  (para. 6b);

 

"Mr. Hayes' negligent misrepresentation and/or fabrication of evidence and/or acts of perjury in his affidavit" (para. 7);

 

"The evidence verifies Whitney Moore either voluntarily or involuntarily aided Mr. Kelly in an unlawful means conspiracy against the plaintiff's company. As the court is knowledgeable from the in tandem motions, Mr. Kelly fabricated evidence of his purported Waldeck mandate and permitted multiple acts of perjury on Whitney Moore's watch. Following a questionable Defence, this motion seeks the court's approval to remove Whitney Moore from its responsibilities to the plaintiff and his companies." (para. 14.b).

 

Professional negligence

178.      The plaintiff's oral submissions included to say that because he was not "a direct client" he was making a claim "for negligence, not professional negligence". The foregoing submission is impossible to 'square' with the claim pleaded against all defendants.  As Mr. O'Donnell submits, the plaintiff is suing a professional firm of solicitors for negligence in respect of their actions or omissions qua solicitors.  On any analysis, that is to assert professional negligence.  Indeed, the amended statement of claim delivered on 31 October 2023 explicitly include a claim for "(professional) negligence".

 

Abuse

179.      Having regard to the foregoing, this Court's decision (Meenan J.) in Loomes v. Rippington & Ors [2020] IEHHHC 237 is particularly relevant. From para. 16 the learned judge stated:

 

"16. It is well established that it is an abuse of the process of the court to launch a professional negligence action without first ascertaining that there are reasonable grounds for doing so. This equally applies where a person seeks to defend an action, such as this for professional fees, on the grounds that the professional involved was negligent and in breach of duty. I refer to the following passage from Denham J. (as she then was) in the decision of the Supreme Court in Cooke v. Cronin & Neary [1999] IESC 54, where she stated: -

"Legal Professional duty

Counsel for the Respondents submitted that this case was run on a wing and a prayer. He informed this Court that he had brought to the attention of the Learned High Court Judge the statement of Barr J. in Reidy v. the National Maternity Hospital, unreported judgment delivered on 31st July, 1997 where he stated at page 15:

'It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily required appropriate expert advice to support it.'

He pointed out that this had been endorsed by Kelly J. in Connolly v. James A. Casey and Laura Murphy (Trading under the style and title of Casey and Murphy) and Michael Fitzgibbon, unreported, High Court, Kelly J., 12th June, 1998. That was an action where the Defendants, who were solicitors, were sued for damages for professional negligence. Kelly J. stated at page 19:

'I have no difficulty in endorsing the views of Barr J. that the commencement of proceedings alleging professional negligence is irresponsible and an abuse of the process of the Court unless the persons advising such proceedings have reasonable grounds for so doing.'

While bearing in mind the important right of access to the Courts I am satisfied that these statements of law are correct ..."

 

180.      Thus, the plaintiff has brought professional negligence proceedings without having reasonable grounds for doing so. This amounts to an abuse of process. It is no answer for the plaintiff to suggest that he will endeavour to obtain a report if directed by this court. Given the reality that the plaintiff has made a claim for professional negligence against all defendants, the claim is an abuse of process with respect the claim against all eleven. For the sake of completeness, it is useful to refer at this point to other claims made by the plaintiff.

 

Breach of contract

181.      It is common case that the plaintiff was not a client of any of the defendants. The relevant clients were corporate entities. The plaintiff does not assert that there was any contract to which he was a party. The plaintiff has not pleaded any basis for the existence of a contract. In circumstances where the was no privity of contract, his claim for breach of contract is entirely unstateable.

 

 

Unlawful means conspiracy

182.      In Sheehan v. Breccia [2020] IEHC 256, Mr. Justice Quinn stated:

 

"369. The features common to unlawful objects conspiracy and unlawful means conspiracy are at the minimum the following:

(1)   Agreement or combination between two or more parties.

(2)  Intention to injure the plaintiff.

(3)  That the actions of the defendants have caused loss to the plaintiff."

The learned judge went on to say:

 

"371. The essential ingredients of an unlawful means conspiracy are as follows: -

(1)  The means adopted must in fact be unlawful.

(2)  The defendants must be aware that the means adopted was unlawful.

(3)  There must be a common intention on the part of the defendants to injure the interests of the plaintiff, even if that intention was not the primary or predominant intention."

 

183.      Even on the facts as pleaded by the plaintiff, the elements of the tort are not made out, nor has the plaintiff sustained loss. I am also satisfied that there is no credible basis for the facts as asserted. By that I mean, matter of indisputable fact include (i) that Charms was a director of Waldeck; (ii) that Balthazar was struck off from 1 May 2015 to 30 August 2016; and (iii) under BVI law, Balthazar could not validly act as a director of Waldeck during that period.

 

184.      However even if this were not so, it does not alter the reality that Mr. Kelly of Fanning & Kelly was given instructions by Charms, qua director of Waldeck, and simply acted, lawfully qua solicitor, on foot of the instructions received. In short, none of the ingredients of an unlawful means conspiracy arise on the facts, however viewed.

 

Negligent misstatement

185.      The plaintiff has not pleaded any factual or legal basis for the claim of negligent misstatement. He has produced nothing evidencing any (i) statement; (ii) any inaccuracy in same; (iii) any assumption of risk and/or reliance by him on any such statement, or (iv) any detriment sustained by him.

 

Conflict of interest

186.      No authority was opened to me to suggest that 'conflict-of-interest' is a cause of action known to Irish law. Even if it was, an alleged conflict (in acting for one client to the alleged detriment of another) is a claim for the client. The plaintiff has not even identified the time period when alleged conflicts of interest arose. In this case, the clients Waldeck and Balthazar were corporate bodies. Thus, the conflict of interest claim is unstateable. Furthermore, the 'conflict of interest' allegations have already been dealt with by the Solicitors Disciplinary Tribunal (complaints withdrawn by plaintiff) and LSRA (complaints rejected).

 

 

 

Separate legal personality

187.      On the topic of a corporate entity's separate legal personality, the plaintiff would appear to be an experienced businessman who is very well aware that a company is a legal entity distinct from its shareholders and directors. Indeed, the plaintiff's written legal submissions tacitly acknowledge that unless he can come within the exceptions to the rule in Foss v. Harbottle, he has no standing in either the 2019 or the 2022 proceedings.

 

Standing

188.      To see the interplay between (i) unstateable claims made by the plaintiff against solicitors for acting on foot of instructions given by their clients; and (ii) the plaintiff's attempt to establish his standing by way of an exception to the rule in Foss v. Harbottle, it is sufficient to quote para. 26 and 27 of the plaintiff's written legal submissions dated 26 January 2025 in the 2022 proceedings, which state:-

 

"26.      There are several principal Foss v. Harbottle exceptions for which the plaintiff qualifies, including:

a.         Ultra Vires and Illegal Acts - If the directors or majority shareholders act beyond the company's legal capacity (ultra vires) or commit an illegal act, a shareholder can challenge the action. The purported director of Waldeck, Charms/Archimedes/Hottinger, has engaged in an unlawful means conspiracy fraud against the company in alliance with the company's defendants, Mark Robertson/ Hottinger and their solicitor, Mr. Kelly/Flynn O'Driscoll. Whitney Moore, in not challenging, despite promising to do so, the unlawful appointment of Mr. Kelly as the purported solicitor to Waldeck and Mr. Kelly's discontinuance of the company proceedings against his client, aided and abetted Mr. Kelly. Furthermore, Mr. Kelly committed acts of perjury seeking to dismiss these proceedings.

b.         Fraud against the Minority - If those in control of the company commit fraud against the minority shareholders and the company itself is unable or unwilling to act, the minority shareholders may bring a claim. It is evidenced that the wrongdoers are in control and they committed fraud on the minority shareholder, the plaintiff.

c.         Violation of Personal Rights - If the action of the majority or those in control of the company infringes upon the personal rights of shareholders (e.g., denial of voting rights), an individual shareholder can sue. The plaintiff has demonstrated that Mr. Kelly's refusal to stand down as the company's solicitor has compromised his personal rights despite the fact that it is proven that the plaintiff is in control of Waldeck via Balthazar Holdings Limited, the majority shareholder.

d.         Special Majority Requirement ignored - If the directors or majority act in a way that requires a special resolution (e.g., changing the constitution) but fails to follow the correct procedure, minority shareholders can intervene. Mr. Kelly did not follow proper procedure in the appointment of Fanning Kelly as the purported solicitor to Waldeck.

e.         Derivative Actions (Statutory Exception) - A shareholder may sue where there are clear examples of breach of duty by a purported director, Charms discontinuing proceedings against themselves in a fraudulent misrepresentation as the 'sole director' of Waldeck.

           

Conclusion

 

27.       The plaintiff respectfully submits he has established the requisite locus standi in one or more required Foss v. Harbottle exceptions." (emphasis added).

 

189.      As touched on earlier, what the plaintiff mischaracterises as "conspiracy" and "fraud" comprises of acts by solicitors on instructions from clients in in the context of providing legal services. In light of the principles articulated in Moffitt; Smith; and in both Crowley decisions, the plaintiff cannot succeed against any of the eleven defendants named in the 2022 proceedings.  However, given that the plaintiff is a 'litigant in person' who has laid such emphasis on his supposed entitlement to an exception to the rule in Foss v Harbottle, I now return to the rule.

 

The rule in Foss v. Harbottle

190.      Victoria was a young queen when judgment was delivered in Foss v Harbottle [1843] 2 HARE 461. What has become known as the rule in Foss v Harbottle (or "the rule") is, therefore, of longstanding. An extensive analysis of the rule was given by Ms. Justice Finlay Geoghegan in this Court's decision in Glynn v Owen & Ors. [2007] IEHC 328 ("Glynn"):

 

"This case highlights what the rule in Foss v Harbottle is primarily concerned with, namely, is a plaintiff shareholder entitled to prosecute an action on behalf of the company for a wrong done to it, or ought the action to be struck out on the footing that it is for the company and not for a shareholder to sue? That is what Foss v Harbottle itself was about...

...A derivative action such as sought to be pursued by the plaintiffs herein is permitted only as an exception to the rule in Foss v. Harbottle which, as the Court of Appeal in Prudential Assurance at p. 210 points out, forms part of the 'elementary principle' that "A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and, therefore, the person in whom the cause of action is vested".

The classic restatement of the rule in Foss v. Harbottle and the exceptions to it is that of Jenkins L.J. in Edwards v. Halliwell [1950] 2 A.E.R. 1064 at 1066:

'The rule in Foss v. Harbottle (1), as I understand it, comes to no more than this. First, the proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favour of what has been done, then cadit quaestio. No wrong had been done to the company or association and there is nothing in respect of which anyone can sue. If, on the other hand, a simple majority of members of the company or association is against what has been done, then there is no valid reason why the company or association itself should not sue. In my judgment, it is implicit in the rule that the matter relied on as constituting the cause of action should be a cause of action properly belonging to the general body of corporators or members of the company or association as opposed to a cause of action which some individual member can assert in his own right.

The cases falling within the general ambit of the rule are subject to certain exceptions. It has been noted in the course of argument that in cases where the act complained of is wholly ultra vires the company or association the rule has no application because there is no question of the transaction being confirmed by any majority. It has been further pointed out that where what has been done amounts to what is generally called in these cases a fraud on the minority and the wrongdoers are themselves in control of the company, the rule is relaxed in favour of the aggrieved minority who are allowed to bring what is known as a minority shareholders' action on behalf of themselves and all others. The reason for this is that, if they were denied that right, their grievance could never reach the court because the wrongdoers themselves, being in control, would not allow the company to sue. Those exceptions are not directly in point in this case but they show, especially the last one, that the rule is not an inflexible rule and it will be relaxed where necessary in the interests of justice'". (emphasis added).

Interests of justice exception?

191.      The last sentence would appear to reflect observations by Hamilton J. (as he then was) in Moylan v Irish Whiting Manufacturers Limited (unreported, 14 April 1980) wherein the learned judge stated: "Having regard to the provisions of Bunreachtra h-Éireann, I am satisfied that an exception to the rule must be made where the justice of the case demands it."  Thus, the question arises as to whether there is an 'open ended' exception to the rule in Foss v Harbottle (i.e. what might be called an 'interests of justice exception'). Later in Glynn the learned judge went on to state: -

"I respectfully agree that the formulation of the rule in the earlier cases makes clear that it should not be applied in such a way as to lead to injustice. Nevertheless, the entitlement of a shareholder to pursue by way of derivative action a claim for and on behalf of a company is an exception to an 'elementary principle' as referred to above. As such it should not be broadly or liberally applied. A very strong case would have to be made out. It would also have to be consistent with the principles underlying the rule in Foss v. Harbottle and the exceptions to it. These include the reluctance of the courts to interfere in the internal management of a company" (emphasis added).

 

192.      The foregoing decision was appealed to the Supreme Court and it is sufficient for present purposes to quote from the decision of O'Donnell (as he then was) in Glynn v Owen [2012] IESC 15: -

"[21] ... the issue was not who was entitled to take part in any vote, but rather whether the defendants together with Mr. Leyland formed a block so that it was not necessary on the part of the plaintiffs to seek a vote, since the outcome would have been pointless. That was a test which assumes that the alleged wrongdoers would be entitled to vote: the question is whether they had, either as a matter of right, agreement, or other arrangement, sufficient votes to form a blocking majority. The High Court found that they did not. The plaintiffs have not advanced any plausible argument as to why the trial judge's conclusion in this regard should be overturned.

 

[22] The trial judge also recognised that this conclusion was largely determinative of the question as to whether the Plaintiffs should be permitted to pursue the claims because the justice of the case required it, assuming such a broad exception to the rule exists. Once again, the plaintiffs have not advanced any serious argument as to why this conclusion should be overturned, other than contending that the justice of the case required that they be permitted to proceed. This was assertion rather than argument. Assuming for present purposes that such a jurisdiction exists, it would require some compelling facts. Furthermore in my view, account should be taken of the rule in Foss v Harbottle, and the exceptions to it, was a judicial fashioned remedy for the difficulties faced by minorities in companies. The development of more sophisticated shareholders agreements and the development of a specific statutory remedy for oppression by a majority, have reduced the need for a wide-ranging exception to the rule...". (emphasis added).

 

193.      In the present case, the plaintiff has gone no further than to assert that the interests of justice require that an exception be made to the rule in Foss v Harbottle. Those assertions 'boil down' to assertions of fraud and conspiracy. Not only has the plaintiff failed to 'underpin' these assertions with either credible evidence or legal principle, they are entirely and fatally undermined by a consideration of the facts. The plaintiff has certainly not made out a "very strong case" (per Finlay Geoghegan J.) or proffered "some compelling facts" (per the now Chief Justice). 

 

194.      Furthermore, the exceptions to the rule in Foss v. Harbottle concern wrongdoing by a majority in control of the company where a derivative action would be for the company's benefit. The foregoing cannot conceivably apply in the present case. Quite apart from this not being a situation involving majority control, Waldeck is now dissolved. Nor can a derivative action be for the benefit of the shareholders of Waldeck, given that Balthazar is also dissolved.  

 

195.      Given the evidence before me, it would be antithetical to the interests of justice to relax the rule in Foss v Harbottle in the manner the plaintiff seeks. Thus, he lacks any standing to make the claims articulated in the 2022 proceedings.

 

The "crux of this case"

196.      At para. 4 of the plaintiff's affidavit sworn on 5 November 2024, he makes the following averments:

"Mr. Kelly's email on 16 October 2016 to the plaintiff is the crux of this case. First, Mr. Kelly falsely declared Waldeck 'dissolved'. More importantly, he then crucially confirms Waldeck is 'reinstated'. By continuing to feign he is the validly appointed solicitor to Waldeck and defying the plaintiff's direct and unequivocal order to cease acting for his company, Mr. Kelly confirms he is no longer acting as a solicitor to Waldeck but as an officer of the court co-conspirator with Robertson and Hottinger in an unlawful means conspiracy fraud against Waldeck. Therefore, Mr. Kelly admits that he fabricated the evidence of his lucrative Waldeck mandate. These events led to Allianz cancelling Mr. Kelly's PI insurance and the lack of his practice, Fanning Kelly. I beg to the refer to the true copy in exhibit JvG4." (emphasis added).

 

197.      I pause to say that, in the foregoing manner, the plaintiff makes clear that the first named defendants' email of 16 October 2016 is the very essence of his claim in the 2022 proceedings. That being so (and leaving aside the fact that it was sent on 14, not 16 October 2016), the email which the plaintiff exhibits at JvG4 inter alia:

 

"As you know, Waldeck has two directors, Charms and Balthazar. The latter was dissolved..." (emphasis added).

 

At variance with the facts

198.      Thus, the plaintiff's averments regarding the contents of Mr. Kelly's email are utterly at variance with the facts. The email from Mr. Kelly which is said by the plaintiff to be the "crux" of his case patently does not state what the plaintiff asserts. Furthermore, the statement in Mr. Kelly's email that Waldeck has two directors, Charms and Balthazar, is entirely correct, despite assertions to the contrary by the plaintiff. With reference to Balthazar, Mr. Kelly's email continued:

 

"...It is has been reinstated only recently. 

Waldeck's sole director - at the time - instructed this firm.

There is no substance to your allegations.

I expect you will furnish an authority from Waldeck for you to correspond or act on its behalf."

 

199.      In objective terms Mr. Kelly's email was both innocuous and accurate. Yet, building on an entirely false premise, the plaintiff constructs allegations of conspiracy, fraud and the fabrication of evidence, all of which lack any credible basis.

 

Scurrilous

200.      Not only that, the plaintiff takes 'bald' assertions, which are as serious as they are unsupported, and swears that "these events led to Allianz cancelling Mr. Kelly's PI insurance and the loss of his practice, Fanning Kelly". There is not a shred of evidence to support that scurrilous allegation, which the plaintiff repeated during his oral submissions. 

 

Hearsay

201.      Indeed, the specific oral submission made on day two of the hearing was to the following effect: "I acknowledge it's hearsay" and "I don't have any evidence" following which the plaintiff immediately stated that as named insurer "declined to insure Mr. Kelly, hence the merger with Flynn O'Driscoll".

 

No evidence

202.      To preface a scurrilous allegation with the acknowledgment that there is no evidence to support it, does not legitimise the making of the allegation. Quite the opposite. Furthermore, one does not need to be a legal professional to understand, as a matter of basic logic, that allegations which are unsupported by evidence should not be made. Unfortunately, the plaintiff has repeatedly demonstrated that this logic does not appeal to him. The plaintiff has shown himself determine to make allegations which are as serious as they are unsupported.

 

203.      Despite the fact that there turns out to be nothing to the so-called "crux" of the plaintiff's case (and he now accepts, as he must, that in the [14] October 2016 email, Mr. Kelly did not "falsely declare" Waldeck dissolved or reinstated), there has been no alteration whatsoever in the allegations of conspiracy, fraud and fabrication of evidence made by the plaintiff. The plaintiff did not identify what he now regards as the "crux" of his case other than to make, in the most vociferous terms, allegations of conspiracy and fraud which are untethered to fact or law.

 

204.      To illustrate this further, Mr. Hayes made inter alia the following averments at para. 28 of his 26 September 2024 affidavit grounding Whitney Moore's application to dismiss these proceedings:

 

"28.      The plaintiff served a notice of trial on 17 July 2024 notwithstanding that it was unclear to Whitney Moore and our solicitors whether pleadings had closed (replies to our notice for particulars not having been delivered coupled with the plaintiff's request that a more focused form of defence should be delivered), Discovery had not been addressed in any shape or form, and without any exchange of reports contrary to High Court practice direction 75 and without any prior consultation with Whitney Moore's solicitors.  Accordingly, I am advised that the filing and service of the notice of trial was premature and that it ought to be struck out." (emphasis added).

 

205.      At para. 11 of the plaintiff's affidavit sworn on 4 December 2024, he averred inter alia that the plaintiff delivered replies to particulars via email on 4 June 2024 "...and Whitney Moore concurred that pleadings had closed. The plaintiff requested a Defence pertinent to Whitney Moore."

 

206.      In response, Mr. Hayes made inter alia the following averments in his 17 December 2024 affidavit:

 

"14.      By way of reply to paragraph 11, I was unaware that replies to particulars had been delivered by the plaintiff at the time of swearing my ground affidavit and apologise for that oversight; however, I am advised that on a very simple analysis of the proceedings, it is clear that they are absolutely not ready for trial, given that, inter alia, discovery has not been yet taken place, and the plaintiff has an outstanding motion (which had been adjourned generally) pending before the courts seeking liberty to amend his statement of claim in these proceedings. There is no truth in the assertion by the plaintiff that Whitney Moore "concurred" that pleadings had closed." (emphasis added).

 

'Perjury'

207.      The aforesaid administrative mistake for which Mr. Hayes promptly tendered an apology is nonetheless characterised by the plaintiff as "perjury". It is nothing of the sort. There is simply no evidence whatsoever for such a gross allegation. Sadly, this characterises the plaintiff's approach to both sets of proceedings.   

 

"I don't have any evidence for this"

208.      During the course of oral submissions the plaintiff also made an entirely unsubstantiated allegation to the effect that Mr. Kelly had somehow intermeddled, in a wholly unspecified manner, so as to prevent Waldeck from being restored to the Register in Gibraltar. Whilst blaming Mr. Kelly for the fact that Waldeck has not been restored to the Register, the plaintiff stated "although I don't have evidence for this" and immediately proceeded to refer to a supposed conversation with an unidentified person in the Companies Registration Office in Gibraltar, who has furnished no affidavit.

 

209.      This is certainly not the only example of the plaintiff making allegations, which are as serious as they are lacking in foundation, despite the obvious scope for damage to the personal and professional reputation of those accused of wrongdoing. While appropriate allowances can be made for a non-lawyer who represents themselves in legal proceedings, it is utterly inappropriate to impugn another's reputation without a shred of evidence to underpin the most serious of allegations, and no legal qualification is required to understand why this is so. Sadly, the plaintiff has shown himself willing to employ legal proceedings to make scurrilous and utterly baseless allegations. 

 

210.      Regarding the allegation that Mr. Kelly in some way prevented Waldeck being restored to the register in Gibraltar, the only 'attempt' which the plaintiff made to 'substantiate' this unfounded allegation was to say that he, the plaintiff, had contacted An Garda Siochana with a view to having the Gardaí try to uncover evidence against Mr. Kelly. This is an utterly inappropriate way to conduct legal proceedings and profoundly unfair to a someone against whom extremely serious, but utterly unsupported, allegations are made.

 

Fabrication of evidence and multiple acts of perjury

211.      As may well have become obvious by now, the target of the plaintiff's unsubstantiated assertions is, primarily, a single legal professional. According to the plaintiff, the first named defendant in the 2022 proceedings has: "repeatedly fabricated evidence and has committed multiple and documented acts of perjury in these proceedings" (see para. 2 of the plaintiff's second affidavit, sworn on 9 December 2024). The plaintiff amplifies the foregoing allegations by making inter alia the following averments in the same affidavit:

 

"Balthazar was not 'dissolved' as fabricated by Mr. Kelly" (para. 3);

 

"...his fabrication that the Balthazar certificate of good standing is not retrospective despite incontrovertible official BVI verification it is" (para. 4);

 

"Mr. Kelly fabricates that Charms did not automatically vacate its purported directorship of Waldeck" (para.9).

 

Affidavit of Laws

212.      Regarding the foregoing, Ms. Jasmine Amaria, partner of Carey Olsen LLP swore an affidavit on 11 December 2024 comprising of "an independent opinion on the corporate history of Balthazar". This independent legal opinion was given by Ms. Amaria who averred inter alia that "I practice law in the British Virgin Islands ("the BVI") and am entitled to do so as a qualified lawyer under the laws of the BVI. I make this affidavit from facts within my own knowledge, save where otherwise appears and where so otherwise appears, I believe the same to be true and accurate."  The qualifications and experience of Ms. Amaria are not in dispute.

 

Uncontroverted evidence

213.      It should also be noted that Ms. Amaria's is the only affidavit concerning the law in the BVI which is before this Court. It was open to the plaintiff to obtain one, but he has not done so. Thus, Ms. Amaria's averments constitute uncontested evidence.

 

Searches

214.      Ms. Amaria's affidavit of laws referred to searches conducted in respect of Balthazar on 15 November, 2024 comprising of:

 

"(a.) search of the public records on file and available for public inspection from the British Virgin Islands registrar of corporate affairs; and

 

(b.) search on the electronic records of the civil division and the commercial division of the registry of the High Court and the Court of Appeal (Virgin Islands) register, each from 1 January, 2000, as maintained on the judicial enforcement management system by the Registry of the High Court of the Virgin Islands".

 

Struck from the Register

215.      The affidavit of laws sworn by Ms. Amaria contains inter alia the following averments:

 

"5. The results of the searches indicate that the Company was dissolved as a BVI business company on 4 July, 2023, having been previously restored to the register of companies (the "Register") twice since the date of its incorporation.

 

6 . BVI companies may be struck from the Register for a number of reasons, which may include, but are not limited to:

(a.) Failure to pay annual fees;

(b.) Failure to make mandatory filings; or

(c.) Failure to maintain a licenced BVI registered agent.

 

7. Section 215 of the [BVI Business Companies Act as amended] provides that, whilst a company is struck off the Register, the company and the directors, members and any liquidator or receiver thereof, may not call on

(a.) Commence legal proceedings, carry on any business or in any way deal with the assets of the company;

(b.) Defend any legal proceedings, make any claim or claim any right for, or in the name of the company; or

(c.) Act in any way with respect to the affairs of the company.

 

8. Under s.215(c), during any period in which the Company was struck off, the Company would not be able to validly act in its capacity as the corporate director of another entity." (emphasis added).

 

216.      Recalling the identities involved, the foregoing means that during any period when Balthazar was struck off, it could not validly act as director of Waldeck.  

 

217.      Paras. 9 to 16 of the Affidavit of Laws dealt with "THE FIRST STRIKE-OFF-RESTORATION IN SEPTEMBER 2013". Paras. 17 and 18 dealt with: "THE SECOND STRIKE-OFF (1 MAY 2015)-RESTORED ON 30 AUGUST 2016". Paras. 19-26 dealt with "THE FINAL STRIKE-OFF (1 MAY 2018)".

 

218.      Recalling the exceptions to the rule in Foss v. Harbottle, Balthazar was struck off the Register for a final time on 1 May 2018 and was dissolved as a BVI business company on 4 July 2023. Thus, an exception to the rule cannot conceivably be for the benefit of a company, which no longer exists.

 

219.      Ms. Amaria's affidavit of laws goes on to contain inter alia the following averments :-

 

"19. Following the restoration of the Company to the Register on 30 August, 2016, records indicate that no annual registry fees were paid in respect of the company between this date and the date the company was dissolved, being 4 July 2023...

 

21. The searches further indicate that the BVI registered agent of the company resigned, and that no replacement agent was appointed...

 

23. Where a registered agent intends to resign as the registered agent of a BVI company, it must give not less than 60 days written notice of its intention to resign to the last known address of the director of the company.

 

24. Where no replacement is appointed, the resignation will take effect on the date of the notice and the company will then be liable to be struck off...

 

26. Following 1 January, 2023, where a company is struck off the register, the company is deemed dissolved on the date the Registrar publishes the notice of the striking off in the BVI official gazette - this would typically happen either the same day or the following day.

 

DISSOLUTION

27. Historically, companies struck from the Register would continue to exist for a period of seven years. However, as outlined in paras. 7 and 8 above, during the periods in which the Company was struck off the Register, it would not have been able to validly act in any with respect to its affairs or act as a corporate director of another entity. Companies do remain capable of incurring further liabilities whilst struck off...

 

29. Where a company was struck from the register prior to 1 January, 2023, but had not been dissolved, it was automatically dissolved as of 1 July, 2023.

 

30. Although the searches indicate that the company was in fact struck off the register on 4 July 2023, it appears that the dissolution of the company was part of the automatic process referred to in para. 29 above, as the company had been struck off since 1 May 2018."  (emphasis added).

 

 

"sneakily written"

220.      The foregoing evidence is as clear as it is uncontroverted. Despite this, in oral submissions the plaintiff described the affidavit of laws as having been "sneakily written". Without proffering any legal opinion to the contrary, the plaintiff - who is not a qualified lawyer in the BVI or elsewhere - asserted inter alia that:

 

"Balthazar was never ever dissolved as falsely claimed by Mr Kelly";

 

"Even if a company is late in paying fees, it does not puncture its authority";

 

"It was not the case in 2016 that being struck off negated a company's authority."

 

221.      These are no more than 'bald' and baseless assertions, utterly undermined by the facts.  Unfortunately, the plaintiff's unwillingness to accept objective facts is also illustrated by his reaction to receipt of the Affidavit of Laws and his submissions to this court in the wake of same.  

 

Contact with Ms. Amaria

222.      It is common case that the plaintiff contacted Ms. Amaria, directly, after having been furnished with a copy of her Affidavit of Laws. In oral submissions he suggested that, as a result of his communication with Ms. Amaria she now acknowledged that during the periods when Balthazar was struck off it would have been able to act as corporate director of another company. This was to create a very misleading impression. To understand why this is so, it is necessary to quote verbatim the contents of the relevant communication, beginning with the plaintiff's email to Ms. Amaria, sent on 08 January 2025, which stated: -

 

"Subject: Your Flynn O'Driscoll affidavit dated 11 December 2024.

Dear Ms Amaria,

 

Mr Kelly is under investigation by the Irish Gardaí/police for admitted acts of perjury and Flynn O'Driscoll for subornation of perjury. Mr Kelly's false Balthazar claims occasioned the closure of his former practice and compelled his merger with Flynn O'Driscoll as a 'salaried partner'.

 

To avoid similar allegations of perjury by omission under oath of intentionally withholding material facts, thereby creating a misleading impression even if the statements in your affidavit are technically factual, I clarify the following facts in your affidavit: ..."  (emphasis added).

 

 

Threat

223.      On any objective reading, the plaintiff's communication to Ms. Amaria begins with a threat, namely, that he may accuse her of perjury. This threat is also based on falsehoods, in circumstances where perjury is exclusively a matter for this Court and there is not a shred of evidence for the propositions that any of the defendants have committed or admitted perjury.  Similarly, the assertion that an admission of perjury resulted in the "closure" of the first named defendant's legal practice and "compelled" a merger with Flynn O'Driscoll as an employee of the latter, is as scurrilous as it is unsupported by evidence.

 

Clarify

224.      The threat is followed by the plaintiff, who is not a lawyer, purporting to "clarify" a legal opinion given under oath by a lawyer who, unlike him is qualified to opine on BVI law. Nor, in objective terms, is the Affidavit in any way unclear or in need of clarification. Despite this, the plaintiff's email to Ms. Amaria continued: -

 

"...I clarify the following facts in your affidavit:

 

(1)  Balthazar Holdings' officially issued Certificate of Good Standing, dated 13 September 2016, is retrospective and confirms that it was not dissolved from August to October 2016.

 

(2)  A solicitor's opinion cannot and does not negate an official and certified Certificate of Good Standing.

 

(3)  Mr Kelly/Flynn O'Driscoll's false assertions on affidavit Balthazar Holdings was 'dissolved' from August to October 2016 are false and, therefore an act of perjury.

 

(4)   In paragraph 8, you state: 'under section 215(c), during any period in which the Company was struck off, the Company would not be able to validly act in its capacity as the corporate director of another entity.' You confirm section 215(c) is from the BVI Business Company's Act 2020, which only came into effect on 01 January 2023 and is not relevant to Balthazar Holdings in 2016.

 

(5)  The affidavit attached to this email is a true copy of your affidavit dated 11 December 2024.

 

(6) Balthazar Holdings was only dissolved on 01 July 2023.

Unless I receive your representation to the contrary by 16 January 2025, you confirm my understanding as documented in the aforementioned points 1-6.

 

jvg". (emphasis added).

 

225.      For reasons touched on earlier, the so called 'facts' put by the plaintiff to Ms. Amaria are at variance with reality. It will be recalled that the "Certificate of Good Standing, dated 13 September 2016", upon which the plaintiff laid such emphasis in his email to Ms. Amaria, is certainly not "retrospective" as the plaintiff must have known. I say this because the very first sentence of the said Certificate makes clear that the BVI Register of Corporate Affairs was certifying the matters contained therein: "at the date of this certificate", the date being, very obviously, 13 September 2016. No specialist legal training is needed to understand the objective meaning of the 4 words "at the date of". Similarly, there was no reality to the suggestion that Balthazar had not been struck off the BVI Register prior to the company's dissolution in July 2023. Irrefutable objective facts include that the Balthazar's second 'strike off' was from 1 May 2015 to 30 August 2016. The claim that saying so was either "false" or "perjury" is, itself, untrue as the plaintiff, who is clearly an intelligent individual, must have been aware.    

8 January 2025 response

226.      It is hardly surprising that Ms. Amaria was unwilling to accept the 'if you don't deny it, you accept it' ultimatum, with which the plaintiff ended his email to her. Indeed, later on the very same day, 08 January 2025, Ms. Amaria, as partner in the firm of Kerry Olsen LLP, responded to the plaintiff, stating:

 

"Dear Mr Von Geitz,

 

Please direct any future correspondence in respect of these proceedings to Flynn O'Driscoll - it is not appropriate for you to contact us directly.

 

If you wish to dispute the contents of the affidavit, you may do so by adducing evidence in the proceedings." (emphasis added).

 

No concessions

227.      In objective terms, that response was appropriate, clear, and involved no concession whatsoever in relation to the contents of the legal opinion comprised in the Affidavit of Laws.  Nor did it take any legal qualification to understand the foregoing.

 

Misleading

228.      Despite knowing what Ms. Amaria's firm stated in the 8 January 2025 response, the plaintiff chose to make oral submission during the hearing to the effect that Ms. Amaria agrees with the plaintiff's interpretation of BVI law, insofar as it applied to Balthazar. This was entirely misleading, as the plaintiff must have known. Again, this is utterly inappropriate conduct by a litigant, which lack of a legal qualification cannot conceivably explain or excuse.

 

229.      As noted earlier, despite the express invitation that he adduce evidence if he wished to dispute the contents of the Affidavit of Laws, the plaintiff has proffered none.

 

 

 

Inappropriate conduct

230.      Having been contacted by the plaintiff, Ms. Amaria contacted the first named defendant, which gave rise to further exchanges with the plaintiff. The following facts are averred to in Mr. Kelly's third affidavit, sworn on 23 January 2025, which disclose further conduct which has no place in litigation:

 

"10. Following receipt of Ms Amaria's email, I issued a reply (copying the plaintiff) and apologised that she was the recipient of such inappropriate and harassing correspondence. My reply further advised that she should proceed to block the plaintiff from her emails in an attempt to prevent receipt of any similar correspondence in the future, a step my firm was caused to take in the past.

 

11. In reply to my email to Ms Amaria, the plaintiff proceeded to email me directly (copying Ms Amaria) where he again proceeded to make false and baseless accusations stating:

'Pathetic and sadly typical of your fraudulent MO in this matter. Let's see how long Flynn O'Driscoll continues to employ you post certain referral of your file to the DPP and the intervention - again - of your PI insurers'

 

12. I beg to refer to a copy of the aforementioned email chain upon which marked with the letters and numbers 'KK8', I have signed my name prior to the swearing hereof.

 

13. I say that following the aforementioned exchange of emails, my firm wrote to the plaintiff on 09 January 2025 wherein we sought confirmation that he would desist from communicating directly with the lawyers and defendants involved in the within proceedings. My letter also advised that in light of his actions, we deemed it necessary to file the within affidavit. Unfortunately, in his email responses of same date, the plaintiff failed and/or refused to confirm that he would desist from making further contact. I beg to refer to a copy of the said letter dated 09 January 2025 and the plaintiff's reply of same date, upon which pinned together and marked with the letters and number 'KK9', I have signed my name prior to the swearing hereof." (emphasis added).

 

231.      In the foregoing manner, the plaintiff has made allegations of the most serious kind against legal professionals which are not underpinned by a shred of evidence. The plaintiff was also prepared to threaten legal professionals with allegations of perjury, devoid of any basis in fact. This is nothing less than shocking particularly when one recalls that, almost two years earlier, on 13 March 2023, the LSRA confirmed that, following a careful consideration of the plaintiff's complaints and all documentation submitted by him, no wrongdoing or conflict of interest on the part of Mr. Kelly had been established.

 

232.      Unfortunately (i) the LSRA's thorough vindication of Mr. Kelly; (ii) the objective fact that Charms was one of the directors of Waldeck; and (iii) the objective reality that Balthazar was struck off when Charms instructed that a notice of a change of solicitors and, subsequently a notice of discontinuance be served on behalf of Waldeck count for nothing, insofar as the plaintiff is concerned.

 

233.      The plaintiff has shown himself willing to ignore all the foregoing because they are realities which do not suit his narrative. Not only that, the plaintiff has displayed a willingness to use legal proceedings as a vehicle to express his animus towards others, in particular Mr. Kelly, despite the absence of fact or law to underpin his assertions.

 

234.      Without, as I say, tendering any evidence from a legal professional to suggest that Ms. Amaria's Affidavit of Laws is other than entirely accurate, the plaintiff nonetheless submits that she is wrong. Whilst it would be tempting to dismiss this 'out of hand', I am very conscious that the plaintiff represents himself and - as may well be apparent from the length of this judgment - I feel it is more appropriate to try and explain, in sufficiently detailed terms, why the plaintiff is mistaken.

 

Kingston Futures

235.      At para. 8 of the plaintiff's affidavit sworn on 5 November 2024 he refers to and exhibits the decision of the Supreme Court of Queensland in Kingston Futures Pty Ltd. v Waterhouse [2012] QSC 212 ("Kingston Futures") and, with reference to it, avers that: "the judgment verifies that the late payment of BVI Registry fees does not puncture Balthazar Holding's authority". The plaintiff goes on to aver at para. 9 that the: "judgment verifies that a company can be dissolved only ten years after failing to file accounts under the BIV's laws".  In my view there are two insurmountable obstacles with respect to the plaintiff's purported reliance on Kingston Futures.

 

236.      First, it is plainly a decision delivered in 2012 and this Court has the benefit of an uncontroverted affidavit of laws given in 2024 by a lawyer qualified under the laws of the BVI who practises law in the BVI, wherein it is averred inter alia that: "during any period in which the Company was struck off, the Company would not be able to validly act in its capacity as the corporate director of another entity". It was open to the plaintiff to obtain a contrary opinion, indeed he was specifically invited to do so, should he take issue with Ms. Amaria's opinion on the relevant legal position. No legal opinion to the contrary has been proffered. In addition to the fact that the Affidavit of Laws constitutes uncontested evidence for the purposes of this application, the second insurmountable obstacle for the plaintiff is as follows.

 

237.      The plaintiff, who is not a lawyer, repeatedly asserts that during the period Balthazar was struck off (specifically between 1 May 2015 and 20 August 2016) Balthazar could validly act as corporate director of Waldeck. This was not the issue considered in Kingston Futures. The facts in the case were materially different. The central issue, as Applegarth J. put it at para. [6] of the reported decision, was:

 

 

"...the problem that arises from the uncontradicted fact that the proceedings were commenced at a time when Kingston had been struck off. The restoration of Kingston to the register and s. 217 of the BVI Business Companies Act is said not to cure the problem that Kingston had 'no standing to bring these proceedings at the date of filing the claim'.  The consequence of being struck off was that it could not commence these proceedings on 20 March 2012. According to Waterhouse, the proceedings were and are a nullity from the outset and remain an abuse of process." (emphasis added).

 

238.      Thus, the issue 'at play' in Kingston Futures was not whether a company could validly act as director of another during a period when it was struck off.  Also of note is that Applegarth J. made clear at para. [9] that:-

 

"The existence of Kingston as a legal entity derives from its incorporation under the law of the BVI. The law of the BVI is a matter of fact for expert evidence." (emphasis added).

 

239.      In the manner touched on earlier, this Court has expert evidence on the question at issue in these proceedings, in the form of uncontroverted averments in the Affidavit of Laws proffered by Ms. Amaria. This evidence utterly and fatally undermines the plaintiff's assertions.

 

240.      With reference to the particular facts and specific legal opinion before the Supreme Court of Queensland, Applegarth J. stated at para. [14]:

 

"The critical sentence in the opinion is:

'Under BVI law the Company is free once restored to continue any proceedings commenced whilst struck off'.

This sentence tends to confirm, especially when reference is made to s. 215(1)(a) and s. 215(2)(c), that the opinion was given on the assumption that Kingston commenced proceedings whilst struck off. This assumption was correct."

 

241.      Later, at para. [15], Applegarth J. went on to state that:

 

"...the opinion is a statement of the law of the BVI and proves facts that are relevant in deciding whether proceedings that were commenced while struck off are nullity, and in deciding whether restoration to the Register permits the proceedings to continue."

 

242.      It should also be noted that in Kingston Futures the court made clear, at para. [27]:

 

"It is strictly unnecessary in the present circumstances to determine the status of the proceedings prior to Kingston's restoration".

 

243.      The very different question and very facts at issue in Kingston Futures is further illustrated at para. [33] wherein it was stated that:

 

"There is no suggestion that the proceedings were instituted by the managing director of Kingston, the solicitor who purported to institute the proceedings on its behalf, or anyone else, knowing that it had been struck off the register."

 

No doubt

244.      It was with respect to the 'net' question before the Supreme Court of Queensland, and with obvious reliance on the legal opinion as to the operation of BVI law, that the court was satisfied that upon its restoration to the Register Kingston was deemed never to have been struck off and, accordingly, the proceedings were not a nullity. That decision on a materially different question cannot conceivably cast doubt on the contents of the sole Affidavit of Laws which is before the court in this case. 

 

Isaac Wunder Order considerations

245.      Recalling the principles articulated by Ms. Justice Whelan in Kearney in relation to the making of an Isaac Wunder Order (including the history of litigation; the nature of allegations advanced; and whether scurrilous or outrageous assertions are made, including fraud) I consider it necessary to set out a number of the allegations which the plaintiff has made to, and about, the defendants, or each of them. Unfortunately, this does not make for pleasant reading.

 

246.      On 18 November 2019 the plaintiff sent an email to Mr. John Lynch of Whitney Moore "Subject: Waldeck solicitor impersonation", which stated:

 

"Dear John,

wondering if you had further thoughts on Fanning Kelly pretending to act on behalf of Waldeck?"

(Exhibit JvG1 to plaintiff's affidavit, filed 4 December 2024).

 

247.      On 6 February 2020, the plaintiff sent an email to Mr. Lynch of Whitney Moore which referred inter alia to:

"...Fanning Kelly/ Flynn O'Driscoll fraudulently claiming to represent my company Waldeck Limited...

 

For your information and if relevant, I am retraining in law and will start working in a solicitors practice shortly..."

(Exhibit JvG1 to plaintiff's affidavit, filed 4 December 2024).

 

248.      On 4 March 2020, the plaintiff sent an email to Mr. Lynch of Whitney Moore "Re: Balthazar Holdings Ltd and Waldeck Ltd -v- Mark Robertson and Archimedes Private office Limited; Record No. 2012/13086P" which stated, inter alia:

 

"You are well aware that Fanning Kelly (which I now understand has been taken over by O'Driscoll Flynn) have conducted themselves in a manner in this case, which is illegal..."

(Exhibit JvG1 to plaintiff's affidavit, filed 4 December 2024).

 

249.      On 12 March 2020, the plaintiff sent an email to Mr. Lynch of Whitney Moore, which stated inter alia:

 

"... Kelly's purported mandate was bogus and likely fraudulent..."

(Exhibit JvG1 to plaintiff's affidavit, filed 4 December 2024).

 

250.      On 22 May 2020, the plaintiff sent an email to Mr. Lynch of Whitney Moore entitled "Fanning Kelly illegally representing Waldeck..." which stated, inter alia:

 

"Kelly is lying when he states Balthazar was 'struck off', 'dissolved' and then reinstated..."

(Exhibit JvG1 to plaintiff's affidavit, filed 4 December 2024).

 

251.      On 14 November 2022, the plaintiff sent an email to the first named defendant which was cc-d to the third named defendant and which stated:

 

"Subject: Your fabrication at a new practice

 

I know how you pulled off your fraud at FOD - Big Dumbo Galway Arts/Law Graduate managing partner enabled and was convinced by you."

(Exhibit KK5 to the 15 October 2024 Affidavit).

 

252.      The plaintiff sent an email on 07 June 2020 to the second and third named defendants which stated:

"Gentlemen,

How much longer will you support your partner's documented mala fides against Waldeck? 

You have no defence for Mr Kelly's illegal actions, and I have no doubt your professional indemnity insurers - as Mr Kelly's did - communicated similarly."

(Exhibit KK5 to the 15 October 2024 Affidavit).

 

253.      The plaintiff sent an email on 10 September 2021 to the second and third named defendants, cc-d to the first named defendant which stated inter alia:

 

"...Gentleman, is it time to come clean with the LSRA, the Law Society, the Gardaí and my family and I, and before your personal liability attaches?

 

Indeed, the last time I saw Mr Kelly, he stood nervous, his hands shook, his parlour [sic] was ruddy, and he was sweating profusely. Such was my concern, I thought he would require immediate medical attention.

 

For transparency, this communication is forwarded to the relevant parties."

(Exhibit KK5 to the 15 October 2024 Affidavit).

 

254.      On 17 September 2021, the plaintiff sent an email to the third named defendant which was cc-d to five other Flynn O'Driscoll email addresses entitled: "Subject: Managing legal practitioner LSRA obligations and Flynn O'Driscoll forgery, deception and fabrication of court and judicial documents, etc". The email stated inter alia:

 

"...Flynn O'Driscoll professional misconduct evidenced by, among other things, unlawfully and purportedly representing Waldeck without a valid mandate to the company's detriment and in unilateral opposition to its sole director, controlling shareholder and CEO...

 

Fraud and dishonesty...

 

Confirmed and documented Flynn O'Driscoll conflict of interest violations...

 

Forgery and deception by way of Flynn O'Driscoll false updates at the High Court Central Office, a fabrication of judicial and court documents...

 

As the managing legal practitioner, I remind you of your obligations that a failure to comply with such is an offence under the Legal Regulatory Services Act. Upon conviction, this is a Class A fine and/or a term of imprisonment not exceeding 12 months.

 

In the event deception and fabrication of court and judicial documents by Flynn O'Driscoll are ascertained, I believe you and your partners may have personal liability to an action in tort for damages.

 

I doubt you, or indeed Mr Kelly, have the notion for Mr Kelly to persist as a partner at Flynn O'Driscoll. Ultimately, he may be more competent to perform conveyancing duties for his wife...

 

For transparency, this correspondence is forwarded to the relevant parties."

(Exhibit KK5 to the 15 October 2024 Affidavit - emphasis in original).

 

255.      On 19 September 2021, the plaintiff sent an email to the second and third named defendants which was cc-d to partners at Flynn O'Driscoll: "Subject: Flynn O'Driscoll reporting obligations to the LSRA and AIG" which stated inter alia:

 

'...At this stage, Pat Flynn and you realise, if not already, you got yourselves a big pig in a poke in Mr Kelly. The partnership will soon determine if the partners will equally parcel the extra PI premium for Mr Kelly's illegal activities or posit [sic] against Mr Kelly's account. Either way Mr Kelly's days at Flynn O'Driscoll are numbered.

 

If the DPP prosecutes Mr Kelly for documented fabrication of Court and judicial documents at the High Court Central Office - see attached - and is successful, Mr Kelly will have a criminal conviction. This is when it gets fascinating. If AIG declines cover, I will have no option other than assuming personal recourse against all equity Flynn O'Driscoll partners.

 

Finally, the LSRA and the Law Society will conclude on Mr Kelly.

 

As is demonstrated, Mr Kelly is a regulatory, fiscal, civil, reputational, and perhaps an alleged criminal liability for Flynn O'Driscoll.

 

Mr Kelly is a con solicitor, and Flynn O'Driscoll is his final enabler...

 

...I am well connected, and friends in the top tier and smaller firms and FOD clients are sceptical when I confide in the saga of Mr Kelly; they cannot understand or believe it"

(Exhibit KK5 to the 15 October 2024 Affidavit - emphasis in original).

 

256.      Moving ahead in time, on 23 January 2024, the plaintiff sent an email to the first to tenth defendants stating inter alia:

 

"...Kelly is a dodgy, shyster imposter solicitor acting unlawfully as Archimedes/Robertson's 'Useful Idiot' FOD partner...

 

...Kelly - if I exaggerate or lie, feel free to unleash your inner Oscar Wilde and issue a writ for defamation. I hope you do but your FOD partners and I know you will not".

(Exhibit KK5 to the 15 October 2024 Affidavit).

 

257.      On 18 July 2024, the plaintiff sent an email to the first to tenth defendants, the subject being the title of the 2022 proceedings, which stated inter alia:-

 

"...Grow a pair and start facing the consequences of your admitted participation in an unlawful means conspiracy fraud as the purported shyster solicitor to Waldeck"

(Exhibit KK5 to the 15 October 2024 Affidavit).

 

258.      The plaintiff does not dispute that he sent the communications referred to, nor does he resile from the contents, despite these being baseless allegations of a most serious nature made in the most disrespectful of terms to and/or concerning defendants in the 2022 proceedings.

 

Third parties

259.      Furthermore, Mr. Kelly's third affidavit, sworn on 23 January 2025, contains the following uncontroverted averments (at para. 14) in relation to the plaintiff's communication with third parties:

 

"14. Unfortunately, the aforementioned emails are not the first time the plaintiff has sought to issue correspondence to parties/entities who are not named nor have any involvement in the within proceedings. For example, when issuing correspondence in respect of the within proceedings:

(a)  On 12 January, 2025, the plaintiff sent an email to my firm and copied Ms. Ariane de Rothschild, whom I understand to be the president and CEO of the Edmund de Rothschild Group, and Ms. Cynthia Tobiano, whom I understand to be the deputy CEO of the Edmund de Rothschild Group.

The email attaches an amended document titled 'Kelly chronology, fabrication of evidence and acts of perjury etc.' which is the plaintiff's response to the legal submissions and chronology of relevant facts and procedural history filed on behalf of the first to tenth named defendants. The body of the email contains further baseless allegations of perjury and fabrication of evidence similar to what has been set out above."

 

260.      The said email, dated 12 January 2025, is exhibited and states, inter alia (emphasis in original):

 

"Subject: Kelly chronology and relevant facts and a bet

 

Sirs,

 

Find correct Kelly chronology of acts and lies attached for your files.

As you know, I have reported Kelly for perjury and you for subornation of perjury. Kelly's acts are material, and a successful prosecution will render your PI policy null and void - the second time around for Kelly.

 

As officers of the court, I warn you not to delay your section 19(1) Criminal Justice Act reporting obligations, especially as you possess proof of Kelly's acts of perjury and his fabrication of evidence. 

 

For the record, I will not accept any settlement offer from you/AIG.  If stupid enough to try, I will report AIG to the Gardaí.

 

Unless I receive your representation to the contrary by January 17, 2025, you confirm you will forward the evidence of Kellys perjury and other acts to the Gardaí and that you will honour your section 19 obligations. When you do, this matter ends.

 

jvg" (emphasis in original).

 

261.      Returning to para. 14 of Mr. Kelly's affidavit, it continues: -

 

(b)  "On 11 January, 2025, the plaintiff sent an email to my firm, copying Ms. de Rothschild and Ms. Tobiano.

(c)   On 9 January, 2025, the plaintiff sent an email to my firm, copying Ms. de Rothschild and Ms. Tobiano.

(d)  On 30 December, 2024, the plaintiff sent an email to my firm, copying Ms. de Rothschild and Ms. Tobiano, advising that he had reported your deponent and the tenth named defendant to An Garda Siochana 'for perjury and your acts of suborning perjury.'."

 

262.      A copy of the said email, dated 30 December 2024, was exhibited, wherein the plaintiff emailed the defendants, and cc'd Ms. Tobiano and Ms. De Rothschild, stating inter alia (emphasis in original):-

 

"Subject: Subornation of perjury and perjury by Kelly, James Duggan, Patrick Flynn, Alan O'Driscoll, Julian Cunningham, Enda Cunneen, David Curran, Gavin Lawlor & David Ryan, Flynn O'Driscoll, the solicitors to Hottinger/Mark Robertson

 

Sirs,

 

Prior to receiving your anticipated High Court submissions, note I have reported your 'partner', Kelly for perjury and your acts for suborning perjury. Your acts are serious offences under the Criminal Justice (Perjury and Related Offences Act), 2021. 

 

I filed the report at Donnybrook Garda Station on December 28^th, 2024, and superintendent Brosnan confirmed receipt..." (emphasis added).

 

263.      Para. 14 of Mr. Kelly's affidavit continued:-

 

(e)  "On 24 December, 2024, the plaintiff sent an email to my firm, copying Ms. de Rothchild and Ms. Tobiano.

(f)   On 16 December, 2024, the plaintiff sent an email to my firm and Ms. Tobiano directly advising that he would be filing a further affidavit in these proceedings.

(g)  On 13 December, 2024, the plaintiff sent an email for a second time to my firm, Ms. Tobiano and Mr. Mark Robertson directly. Mr. Robertson is named as a defendant and who my firm acted for in a related set of proceedings brought by the plaintiff. The email referred to the service of the Affidavit of Laws.

(h)  On 13 December, 2024, the plaintiff sent a 'corrected' email to my firm and Ms. Tobiano directly which referred to the service of the Affidavit of Laws.

(i)    On 9 December, 2024, the plaintiff served an affidavit on Ms. Tobiano and my firm directly.

(j)   On 6 December, 2024, the plaintiff responded to an email from my firm and included Ms. de Rothschild and Ms. Tobiano directly in his reply.

(k)  On 13 November, 2024, the plaintiff served an affidavit on my firm, Ms. de Rothschild and Ms. Tobiano directly.

(l)    On 06 November, 2024, the plaintiff sent an email to my firm serving an affidavit copying Ms. de Rothschild, Ms. Tobiano and the Financial Conduct Authority in the United Kingdom.

(m) On 29 October, 2024, the plaintiff emailed your deponent, copying Ms. de Rothschild and Ms. Tobiano, stating 'take it easy, boy'.

(n)  On 25 October, 2024, the plaintiff sent an email to my firm, copying Ms. de Rothschild and Ms. Tobiano alleging perjury on the part of your deponent.

(o)  On 07 June, 2024, the plaintiff sent an email serving a draft Certificate of Readiness on my firm, Ms. de Rothschild and Mr. Herve Ordioni, the then Head of International Private Banking at the Edmund de Rothschild Group. The plaintiff copied the financial conduct authority of the United Kingdom on the emails.

(p)  On 17 May, 2024, the plaintiff sent an email to my firm copying the financial conduct authority and Mr. Ordioni.

(q)  On 07 May, 2024, the plaintiff sent an email to my firm on response to the first to tenth named defendants Notice to Produce, copying Ms. de Rothschild and Mr. Ordioni.

(r)   On 04 May, 2024, the plaintiff sent an email to my firm in response to the first to tenth named defendants Notice to Produce, copying Ms. Rothschild and Mr. Ordioni.

I beg to refer to copies of the aforementioned emails upon which pinned together and marked with the letters and number 'kk10', I will sign my named prior to the swearing hereof.

 

15. I say it is apparent from the foregoing that the plaintiff is attempting to use the within proceedings as a platform to continue his acts of oppression against your deponent, the second to tenth named defendants and parties he has previously unsuccessfully pursued through the courts.

 

16. The foregoing is in addition to the acts of aggression referred to in my previous affidavits, in particular the incident where the plaintiff gained entry to the offices of Flynn O'Driscoll and refused to leave until An Garda Siochana was called.

 

17. In the premises, I believe and am so advised that, unless the plaintiff is restrained from instituting fresh proceedings without the leave of this honourable court, the plaintiff will persist in his oppressive campaign of frivolous and vexatious litigation with the attendant harassment of the defendants herein and misuse of this honourable court's time and resources."

 

264.      In relation to the foregoing averments, the plaintiff takes no issue with either the fact or content of his contact with the parties identified. His submission went no further than to say "They were not non-parties. They were quite relevant".

 

265.      In fact, these people are not parties to the proceedings. Furthermore, their only conceivable relevance is regarding losses allegedly sustained by Waldeck and/or Balthazar arising from the termination, in 2012, of contractual arrangements entered into, in 2011, with Rothschild and Archimedes, respectively. However, those losses by corporate entities cannot properly be pursued in the 2019 or 2022 proceedings.

 

266.      With regard to the incident referred to at para. 16 of Mr. Kelly's affidavit, the plaintiff merely asserts that he did not gain "unlawful" entry to the offices of Flynn O'Driscoll and that he left before the Gardaí arrived.  

 

267.      For the sake of clarity and completeness, at no stage during the hearing did the plaintiff resile from, apologise for, or seek to amend even a single word in the statements made to, and about, the defendants irrespective of whether the communication in question was sent to a defendant or to a third party.

 

Justice

268.      During his oral submissions, the plaintiff stated "I am not seeking money from this. What I want is justice" and he went on to suggest that he had informed the eleventh named defendant that "if there's a payment it will be given to charity". With respect, these submissions are impossible to reconcile with the nature of the pleas made by the plaintiff in a claim which is 'squarely' aimed at securing money from all defendants, who are accused of the most serious wrongdoing for which no credible basis has been proffered.

 

 

Wronged

269.      Despite the reality that it was Waldeck and Rothschild which agreed to enter into a contract governed by Swiss law (and it is alleged that Rothschild induced Archimedes to abandon that contract, and the latter's with Balthazar) it is very clear that the plaintiff considers himself to have been wronged.

 

270.      Indeed, the plaintiff's oral submissions on day 3 included: "I have never heard of anyone who has suffered as much wrongdoing". It is equally clear that the plaintiff regards Mr. Kelly as the primary wrongdoer, despite the absence of any objective evidence.   

 

Animus

271.      Such is the plaintiff's animus towards Mr. Kelly that, during his oral submission in opposition to the first motion, I had to intervene to ensure the plaintiff faced and addressed me, rather than directing accusations to Mr. Kelly in a personal manner in the courtroom.

 

272.      Furthermore, despite the fact that Mr. Kelly is not even a defendant in the 2019 Proceedings, severe criticism of him featured in the plaintiffs' oral submissions in opposition to both applications.   

 

Important considerations

273.      In approaching both applications I am very much aware that (i) the onus lies on the defendants; (ii) the 'default' position is a trial; (iii) the jurisdiction to dismiss must be exercised very sparingly, given the constitutionally-protected right of access to the courts; and (iv) that relief sought by the defendants should not be granted under O. 19, r. 28 if an amendment would correct a deficiency in the pleaded claim so as to articulate a good cause of action.  

 

Amendment

274.      The latter principle is all the more important where a non-lawyer represents himself. As Mr. Justice Birmingham put it in J. O'N v. S. McD [2013] IEHC 135:

 

"Clearly, there can be no questions of a lay litigant being deprived of his right of access to the courts by reason of any lack of skill as a draftsman. It is also important to avoid a situation where the tone and style of the pleadings so grate on one that it leads to an assumption on the part of the reader that the pleadings are frivolous or vexatious."

 

275.      In the present case, it could not be said that the plaintiff lacks skill as a draftsman. He has articulated his complaints in the clearest of terms. The fault lies not in the drafting but in the fact that the claims, whilst drafted in exhaustive detail, are bound to fail.

 

276.      Even if the facts are as asserted by the plaintiff, they do not give rise to a cause of action against any of the defendants in the 2022 proceedings. Furthermore, there is no credible basis for suggesting that the facts are as the plaintiff asserts. Hence, the claim is bound to fail on the merits and constitutes an abuse of process.

 

277.      In McAndrew v. Launceston Finance Property DAC [2023] IECA 43, Faherty J. stated on behalf of the Court of Appeal:

 

"91.  Overall, I accept the defendants' counsel's argument that it is not for this Court to try and identify amendments that might conceivably save the proceedings as they stand in circumstances where no amendments have been put before the Court, either by way of the plaintiff's 29 January 2018 affidavit grounding his application to amend his statement of claim or otherwise. As said by Haughton J. writing for this Court in Fulham v. Chadwicks Limited & Ors [2021] IECA 72 after reviewing the relevant caselaw, the exercise of the jurisdiction to permit an amendment to 'save the action' required that "the claimant or his/her lawyers will usually be required to intimate an intention to amend, or at least the general nature of the amendment suggested in response to the motion to dismiss". In my view, that (relatively) low threshold has not been met here. Unlike the position in Greally v. Havbell DAC Limited & Ors, [2021] IEHC 637, nothing has been put by the plaintiff by way of a proposed amendment from which the Court could conceivably extract a basis for saving any of the pleas as presently set out in the statement of claim. I note that in Greally v. Havbell, a draft amended statement of claim was put before the court which, to some extent at least, was accepted by the court as a basis for not striking out the proceedings against the first defendant in that case."

 

278.      The plaintiff has not suggested any amendment to his claim in the 2022 Proceedings. Nor has he intimated any intention to seek to amend in response to the present applications. Even if this Court were under a duty to identify an amendment which might 'save' the plaintiff's case, I am satisfied that it cannot be improved by way of an amendment, which would disclose a cause of action.

 

279.      For the reasons set out in this judgment, I am satisfied that the defendants in the 2022 proceedings are entitled to orders dismissing the proceedings both under O. 19, r. 28 and under this Court's inherent jurisdiction.

 

280.      I now turn to look more closely at the 2019 proceedings and the application to dismiss same.

 

The 2019 proceedings

281.      The provisions of the Protected Disclosures (Amendment) Act, 2022 ("the 2022 Act") do not apply to the plaintiff's claim. Schedule 7, as inserted by the 2022 Act, concerns transitional provisions for claims made prior to the 2022 Act coming into force. The alleged protected disclosures were made between 11 September 2012 and 18 January 2019, namely, prior to 18 January 2019. Thus, only sections 9 and 10 of schedule 7 could apply to the plaintiff's claim (the remaining sections apply only where the alleged detriment occurred after the commencement of the 2022 Act and/or the proceedings were commenced after the commencement of the 2022 Act).  Nothing turns on sections 9 or 10 of schedule 7. 

 

The 2014 Act

282.      The plaintiff's claim falls to be dealt with under the provisions of the Protected Disclosures Act, 2014 ("the 2014 Act"). Part 2 of the 2014 Act defines "Protected Disclosures" in s. 5(1) as meaning a disclosure of "relevant information" by a worker. Section 5(2) makes clear that information is "relevant information" if inter alia:

 

"(a)      In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings..."

 

Section 5(3)

283.      Section 5(3) (b) specifies "relevant wrongdoings" for the purposes of the Act, in particular:

 

"(b)      that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services" (emphasis added).

 

284.      Section 5(7) makes clear that the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure, whereas s. 5(8) makes clear that the presumption a disclosure is a protected disclosure is a rebuttable one.

 

12 September 2012 email

285.      Earlier in this judgment I set out, verbatim, the first of the communications which the plaintiff contends to be a protected disclosure, namely, the plaintiff's 12 September 2012 email to Mr. Robertson, entitled "Subject: Archimedes and Rothschild". Recalling that Mr. Robertson was the principal of Archimedes, this email was sent after Archimedes terminated the contract with Balthazar, on 21 August 2012, and before Rothschild terminated the agreement with Waldeck, on 21 September 2012. As noted previously, the email stated inter alia the following ("APO" being a reference to Archimedes Private Office Ltd): -

 

"My lawyers have advised that I have good grounds for an action against you personally for misrepresentation...

 

...in the event of an unsatisfactory outcome in my action against APO, I'll be seeking recourse against you in a personal capacity. In the event of this happening, what is BPER's view?

 

...your personal financial interest in APO has interfered with your ability to fairly represent Rothschild in its relationship with Waldeck."

 

Not a protected disclosure

286.      In the manner examined, s. 5(3) (b) excludes from the ambit of the 2014 Act private disputes which are covered by the civil law, such as disputes with regard to the commercial arrangements between (to quote from the subject of the plaintiff's email) "Archimedes and Rothschild". Those commercial relations comprised of (i) the 2011 agreement between Waldeck and Rothschild; and (ii) the 2011 contract between Balthazar and Archimedes.

 

287.      I am satisfied, therefore, that the 11 September 2012 email cannot be a protected disclosure under the 2014 Act.   

 

288.      The next of the alleged protected disclosures is an email dated 16 November 2018, sent by the plaintiff to Mr. Robertson, which post-dates the alleged 'detriment'. To understand the meaning of that term, it is necessary to return to the 2014 Act.

 

Detriment

289.      Section 13 is entitled "Tort action for suffering detriment because of making protected disclosure" and begins:-

 

"13 (1) If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused."

Section 13(3) goes on to state:

 

"(3)      In s.s. (1) 'detriment' includes

(a)   coercion, intimidation or harassment

(b)  discrimination, disadvantage or adverse treatment in relation to employment (or prospective employment),

(c)   injury, damage or loss, and

(d)  threat of reprisal."

 

290.      By means of the 2019 Proceedings, the plaintiff is seeking to recover losses allegedly suffered by Balthazar (arising from the termination on 21 August 2012 of the contract with Archimedes) and by Waldeck (arising from the 21 September 2012 termination by Rothschild of the 2011 Agreement). This is readily illustrated by the contents of the plaintiffs Replies to Particulars dated 6 May 2024 wherein the plaintiff pleads inter alia:-

 

"3.        The first known acts of retaliation and harmful events by the defendants include the following acts of penalisation:...

 

e.         The cancellation of the Plaintiffs company Waldeck Rothschild agency agreement. Following successful client introductions, the plaintiff's company, Rothschild Agency, was scheduled to receive over one million dollars per annum in retrocession payments. The defendants abduced the Waldeck revenues for the benefit of their Rothschild Agency...

 

g.         The cancellation of the Plaintiff's company Balthazar agency agreement with Archimedes/Hottinger. Archimedes/Hottinger informed the plaintiff's introduced clients that upon due diligence, the plaintiff, though contractually impossible, had been untruthful in his declarations.  At the point of termination, the plaintiff's company was earning two hundred thousand euro per annum."  

(emphasis added).

 

291.      The plaintiff has in effect re-formulated a claim based on alleged protected disclosures in an attempt to circumvent the fact that he has no standing to make claims on behalf of either Balthazar or Waldeck.

 

292.      However, section 13 of the 2014 Act does not entitle a party to make a claim on behalf of another. The plaintiff has no entitlement to make a claim for detriment allegedly suffered by Balthazar or Waldeck. The foregoing, of course, 'chimes' with the rule in Foss v Harbottle. However, it also reflects the proposition that a plaintiff may not bring proceedings for alleged damage to his shareholding in a company as a result of damage to the company. In this regard, Counsel drew my attention to the decision in Flanagan v Kelly [1999] IEHC 116 ("Flanagan"). 

 

Flanagan v Kelly

293.      Regarding the facts in Flanagan, the defendant acted as accountant and auditor for a company that had gone into liquidation, of which the plaintiff was a former director. In the statement of claim it was pleaded that, by reason of the negligence and breach of contract of the defendant, the company had been prematurely wound up. This Court (O'Sullivan J.) dismissed the plaintiff's claim under O. 19, r. 28. The learned judge was satisfied that, with one exception, all the losses pleaded in the statement of claim concerned losses of the company.

 

Independent duty

294.      The remaining claim constituted an allegation that the defendant owed an independent duty to warn the plaintiff and that there was such sufficient proximity to give rise to a cause of action in negligence and breach of duty. In dismissing this claim, O'Sullivan J. concluded:

 

"In considering this submission I am clearly bound by the ruling of the Supreme Court in O'Neill v. Ryan [1993 ILRM 557]. It is clear from the judgment therein and in particular from the judgment of Blayney J. (at page 571) that a plaintiff may not as a shareholder, sue in respect of alleged damage to his shareholding resulting from damage to the company.

 

In so asserting Blayney J. made it clear that he was not applying the rule in Foss v. Harbottle [1843 2 Hare 461] (where a plaintiff claims in respect of damage to the company) but that he was applying the decision of the Court of Appeal in England in Prudential Assurance Company Limited v. Newman Industries Limited (no. 2) [1982 CH 204], where it was held that a plaintiff may not bring an action for alleged damage, not to the company, but to his shareholding in the company as a result of damage to the company.

 

As was said in the Prudential Assurance Company Limited case:-

 

'The rule is a consequence of the fact that a corporation is a separate legal entity. Other consequences are limited liability and limited rights. A company is liable for its contracts and torts; the shareholder has no such liability. The company acquires causes of action for breaches of contract and for torts which damage the company. No cause of action vests in the shareholder.' (emphasis added).

 

Earlier the Court of Appeal had said:-

 

'In our judgment the personal claim is misconceived. It is of course correct...that (they) in advising the shareholders to support the resolution approving the agreement, owed the shareholders a duty to give such advice in good faith and not fraudulently. It is also correct that if the Directors convene a meeting on the basis of a fraudulent circular, a shareholder will have a right of action to recover any loss which he has been personally caused in consequence of the fraudulent circular; this might include the expense of attending the meeting. But what he cannot do is to recover damages merely because the company in which he is interested has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in dividend, because such a 'loss' is merely a reflection of the loss suffered by the company. The shareholder does not suffer any personal loss. 'Loss' is through the company, ...the Plaintiff's shares are merely a right of participation in the company on the terms of the articles of association. The shares themselves, his right of participation, are not directly affected by the wrongdoing. The Plaintiff still holds all the shares as his own absolutely unencumbered property.'     

 

And further on the Court said:-

 

'A personal action would subvert the rule in Foss v. Harbottle and that rule is not merely a tiresome procedural obstacle placed in the path of a shareholder by a legalistic judiciary. The rule is the consequence of the fact that a corporation is a separate legal entity.'

 

This decision of the Court of Appeal in England was followed and applied by the Irish Supreme Court in O'Neill v. Ryan. Accordingly, I am bound by it." (emphasis added).

 

In light of the foregoing, the plaintiff is not entitled to claim, as a detriment, damage that could only be pursued by either Balthazar or Waldeck. Yet this is precisely what the plaintiff seeks to do, impermissibly, in the 2019 Proceedings.  

 

Same losses different defendants

295.      It is also clear that the plaintiff attributes the same losses to entirely different parties. By means of the 2022 Proceedings, the plaintiff asserts that solicitors, primarily Mr. Kelly and his firm, are to blame. Yet in the 2019 Proceedings the same losses are attributed to clients of solicitors. 

 

296.      In addition to claiming for losses to Waldeck and/or Balthazar in both the 2019 and 2022 proceedings, common 'threads' are that (i) both sets of proceedings are driven by the plaintiff's animus towards Mr. Kelly, in particular, and (ii) allegations are made in both, which lack any objective basis in evidence, or are based on a mischaracterisation of facts (a prime example being Mr. Kelly's innocuous and accurate 14 October 2019 email, said to be the "crux" of the plaintiff's case, the contents of which he utterly misrepresents).

 

297.      I am satisfied that the email of 11 September 2012 cannot be considered to be a protected disclosure within the meaning of the 2014 Act and that the 2019 proceedings comprise a claim for damages which only Balthazar and/or Waldeck have the standing to pursue.

 

298.      Whilst the foregoing is a sufficient basis upon which to grant the dismissal of the 2019 proceedings, I am anxious to ensure that the plaintiff understands the close analysis this Court has given to every aspect of the claim and, therefore, propose to look at each and every aspect of the alleged detriment as pleaded (at para. 21 (a) to (i) of the plaintiff's statement of claim delivered on 31 July 2023).

 

Defamation

299.      The plaintiff's oral submissions laid particular emphasises on the taking of defamation proceedings against him (pleaded at para 21 (a) of his statement of claim). As he put it: "The defamation proceedings are an example of detriment" going on to say that "if the super-injunction is not ongoing detriment, I don't know what is". During the course of oral submissions, the plaintiff also asserted that the defamation proceedings against him were, in effect, a ruse against the backdrop of a certain application to the Financial Conduct Authority. However, defamation proceedings (or what the plaintiff refers to as "superinjunction High Court proceedings") stand or fall on their merits. The insurmountable problem for the plaintiff is that he consented to orders against him. By doing so, he not only agreed to cease the defamation in question, but consented to an order which acknowledged his contempt. Defamation proceedings simply could not constitute detriment within the meaning of the 2014 Act.  Any claim that the defamation proceedings lacked merit is, frankly, incredible, given that the plaintiff consented to the injunction in those proceedings and consented to the order on foot of a subsequent contempt application. 

 

 

Central Bank

300.      The plaintiff has proffered no credible basis for his claim that a report was made to the Central Bank (para 21 (b) of his statement of claim). Leaving that aside, any such reporting could not credibly support a claim of detriment, given the Central Bank's independent role. It is not disputed that the Central Bank conducted an investigation into the plaintiff. However, any adverse findings against the plaintiff by the Central Bank (in his oral submissions the plaintiff made reference to "a prohibition order") cannot conceivably constitute detriment for the purposes of the 2014 Act.

 

Bankruptcy

301.      The allegation of "attempted frustration of the plaintiff's bankruptcy" (see para 21 (c) of the statement of claim) is not particularised, explained, or supported by any credible evidence.  Quite apart from the foregoing, the order made in the plaintiff's bankruptcy proceedings dates from October 2012 and any claim concerning it is plainly 'statute barred'.

 

Waldeck

302.      What the plaintiff characterises as "the illegal high jacking of the plaintiff's company Waldeck" (see para 21 (d) of the Statement of Claim) constitutes, in objective terms, solicitors acting on foot of instructions. Despite the plaintiff's assertions to the contrary, Balthazar was struck off the Register of Companies in the BVI and Charms was a director of Waldeck. The plaintiff has no standing to sue on behalf of a corporate entity and the claim is entirely without merit.

 

Forging

303.      The alleged "forging of Waldeck company formation documents by digitally superimposing the plaintiff's purported signature appointing a director" (pleaded in para 21 (e) of the statement of claim) is no more than a baseless assertion made by someone who, in 2012, gave instructions to Whitney Moore (reflected in the Statement of Claim in the 2012 proceedings) that the relevant company (Charms) was a director. Not a shred of evidence has been proffered in support of the "forging" allegation. It will also be recalled that in proceedings brought by Archimedes in the BVI (record number BVI HCV (COM) 2013/133) the plaintiff filed a defence on behalf of Balthazar which also contains the explicit plea that Charms was a director and shareholder of Waldeck (see exhibit "JVG5" to the plaintiff's affidavit, sworn on 5 December 2024). As noted earlier in this judgment, the objective record in the form of information from BVI Companies Registrar also confirms that Charms was at all material times a director of Waldeck. In short, the claim of forgery lacks all credibility, as the plaintiff must know.

 

False representations

304.      The same can be said in relation to the plaintiff's allegations of "false representation by same solicitors, again without lawful authority" (see para. 21 (f) of the Statement of Claim). This is no more than a 'bald' assertion, undermined by objective evidence. Furthermore, the plaintiff's lacks the standing to make a claim on behalf of Waldeck. This cannot amount to detriment for the purpose of the 2014 Act. 

 

Conflicts of interests

305.      What the plaintiff categories as "conflicts of interest violations by the same solicitors" (para. 21 (g) of the Statement of Claim) was rejected by the LSRA. Nor is it a cause of action.  Furthermore, the plaintiff was not a client of any of the solicitors involved and, again, this is a claim without merit which cannot constitute detriment within the meaning of the 2014 Act.

 

Struck off

306.      There is simply no credibility to the claim that a solicitor "falsely asserted" that "Balthazar was struck off or dissolved to manufacture a mandate without lawful authority" to act for Waldeck (para. 21 (h) of the Statement of Claim). The incontrovertible fact is that Balthazar was struck off.  The significance of this is made clear in an uncontroverted Affidavit of Laws, discussed earlier. The allegation that a mandate was manufactured without lawful authority is another 'bald' assertion, wholly undermined by objective evidence. It cannot conceivably constitute detriment, leaving aside the absence of the plaintiff's standing.

 

Unlawful acts of retaliation

307.      There is simply no evidence to support what the plaintiff characterises as "unlawful acts of 'retaliation' in this jurisdiction". The foregoing are no more than unsubstantiated allegations made by someone who lacks standing to pursue any alleged loss sustained by Waldeck or Balthazar.  There is nothing which can conceivably amount to detriment within the meaning of the 2014 Act.

 

Archimedes / Balthazar Agreement

308.      At para. 22 of the Statement of Claim it is pleaded that "The plaintiff has not received the shareholding due and owing under the Archco/Hottinger Balthazar Agreement". The 2014 Act is not a vehicle for articulating private rights covered by contract. Nor has the plaintiff the standing to sue on behalf of a corporate entity. Furthermore, and bearing in mind that the agreement goes back to 2011, any claim is 'statute barred'. 

 

Oral submissions

309.      Although, as I have said more than once, Mr. Kelly is not a defendant in the 2019 proceedings, the plaintiff continues to use the 2019 proceedings to ventilate baseless allegations concerning this gentleman. By way of example, in the plaintiff's oral submissions (on day 3) in opposition to the motion to dismiss the 2019 proceedings he stated: "The mere fact I'm standing in court is evidence of the detriment cause by Mr Kelly and his clients". The plaintiff repeated the assertion that the instructions given to Mr. Kelly and his firm to act for Waldeck were false and claimed: "this charade has continued to the present day".

 

 

 

The same grievances

310.      It is perfectly clear that the plaintiff is using the 2019 Proceedings to articulate the same grievances, particularly against Mr. Kelly, which also feature in the 2022 Proceedings and which were previously the subject of complaints to the Solicitors Disciplinary Tribunal (withdrawn) and LSRA (frivolous or vexatious and inadmissible). By way of further example, at para. 3 (i) and (ii) of the plaintiff's Replies to Particulars dated 6 May 2024 he refers to what he describes as:

 

i.              The dishonest high-jacking of the plaintiff's company Waldeck by Fanning Kelly/Flynn O'Driscoll Solicitors acting on a manufactured mandate in an unlawful means conspiracy fraud with the defendant...

 

j.          The discontinuation of the plaintiff's company proceedings 2012 13086P against the defendants Robertson and Archimedes/Hottinger Private Office by same solicitors representing the defendants and acting on a purported and fabricated mandate, Fanning Kelly/Flynn O'Driscoll" (emphasis added).

30 January 2025 - 'perjury' reported to Gardai

311.      Furthermore, as recently as 30 January 2025, the plaintiff swore and filed an affidavit in the 2019 Proceedings entitled: "PERJURY BY OFFICER OF THE COURT KIERAN KELLY REPORTED TO AN GARDA SIOCHÁNA", which includes the following averments: -

 

"1.        The plaintiff reported Kieran Kelly to Gardaí on 27 December 2024 for admitted acts of perjury in High Court proceedings, 2022/4188P in affidavit sworn by Mr. Kelly on 15 October 2024 and 05 November 2024 at Donnybrook Garda Station. James Duggan, Patrick O'Flynn, Alan O'Driscoll, David Curran, Eoin Cunneen, Gavin Lawlor, Julian Cunningham, David Ryan and Flynn O'Driscoll LLP were reported for subornation of perjury to Gardaí at Donnybrook."  (emphasis in original).

 

312.      At para. 2, the plaintiff avers that he made a similar report on the same date in respect of "admitted acts of perjury in High Court proceedings 2019/7740P in affidavits sworn by Mr. Kelly" (emphasis in original) and reported the second to the eleventh named defendants "for subornation of perjury". Paragraph 3 begins as follows:

 

"3.        Mr. Kelly's acts of perjury include egregious claims that he was instructed by the 'Board of Waldeck' and that the plaintiff's company was 'dissolved' in a submission to the solicitors disciplinary tribunal..."

 

Serious Crime Office

313.            At para. 4, the plaintiff avers that a superintendent Brosnan acknowledged the plaintiff's report. At para. 5, the plaintiff avers that a superintendent McLoughlin of the Serious Crime office confirmed receipt "of the plaintiff's report of perjury and other acts under the Criminal Justice (Perjury and Related Offences) Act, 2021... of the plaintiff's report of Mr. Kelly and Mr. Hayes's affidavits committing perjury".

 

314.      At para. 6, the plaintiff takes issue with "affidavit sworn by Mr. Kelly in High Court proceedings 2019/7740P and 2022/4188P dated 21 January 2025" (emphasis in original). 

 

315.      At para. 7, the plaintiff avers that he forwarded his 30 January 2025 affidavit to superintendent McLoughlin of the Serious Crime Office on the same day. 

 

Vehicle

316.      It is perfectly clear from the evidence before this Court that the plaintiff is using the 2019 Proceedings as a 'vehicle' to maintain a campaign of harassment against the defendants named in the 2022 Proceedings, particular Mr. Kelly.

 

317.      The plaintiff also seeks to deploy, in opposition to the motion to dismiss the 2019 Proceedings, what he asserts to be acts of perjury and criminality conducted by the defendants in the 2022 Proceedings. These allegations are as serious as they are entirely lacking in substance.

 

318.      The plaintiff concludes his 30 January 2025 affidavit in the 2019 Proceedings as follows:-

 

"The defendants motion to dismiss the proceedings is grounded on acts of perjury by an officer of the court, has attempted to mislead the court, is not in the public interest, is premature and violates the plaintiff's constitutional right under Article 40.3 and Article 6 of the European Convention of Human Rights for a trial. Judicial incuriosity of the Protected Disclosures Act of an action in tort against defendants who have engaged in multiple, documents and catastrophic acts of retaliation and criminal conduct in these proceedings would create a chilling precedent."

 

319.      Reference by the plaintiff to an "officer of the Court" is plainly a reference to Mr. Kelly, who is not a defendant in the 2019 Proceedings, but continues to be the primary target for the plaintiff's unsubstantiated allegations. 

 

320.      Whilst the plaintiff has not suggested any intention to seek amend his claim in response to the defendants' motion, still less intimated the general nature of any amendment, I am satisfied that no amendment can 'save' the claim pleaded in the 2019 proceedings, which cannot conceivably disclose a valid cause of action.

 

321.      For the reasons set out in this judgment, and guided by the authorities to which I have referred earlier, I am satisfied the defendants in the 2019 proceedings are entitled to orders dismissing the plaintiff's case both under O. 19, r. 28 and under this Court's inherent jurisdiction.

 

322.      The plaintiff's Statement of Claim delivered in the 2019 proceedings (on 31 July 2023) and the plaintiff's amended Statement of Claim delivered in the 2022 proceedings (on 31 October 2023) contain several identical pleas, including:

 

"To the...chagrin of the English working class and non-educated Mr Robertson, the plaintiff introduced [named individuals] to the opportunity of ...Rothschild managing their wealth at a meeting on 23 April 2012 at 14:30 at their offices in Embassy House. The plaintiff's introduction was potentially the most significant new mandate ever for ...Rothschild in Ireland...".

 

323.      For the plaintiff to make these pleas in both sets of proceedings over 11 years after the alleged events speaks to his fundamental complaint, namely, his conviction that efforts to monetise his access to wealthy individuals in 2012 should have been successful. These pleas also disclose the plaintiff's willingness to disparage others based on a 'classism' which has no place in a constitutional Republic of equals, and to denigrate others based on his perception of their educational attainments. The plaintiff's emails, quoted earlier, contain further examples of this toxicity, with the plaintiff, in a grossly unfair manner, venting his spleen primarily in the direction of Mr. Kelly, whose fortitude and dignity in the face of baseless attack can only be saluted.

 

Campaign

324.      During his oral submissions, the plaintiff summarised his position by merely stating: "I have spent many years forcefully and vigorously challenging Mr. Kelly". That submission entirely mischaracterises matters.

 

325.      The evidence discloses that the plaintiff has engaged in what can fairly, indeed only, be described as a campaign of harassment of Mr. Kelly, and others. Using legal proceedings as a platform, the plaintiff has over many years and in the most demeaning and disrespectful terms, made allegations to, and about, the defendants which are scurrilous, outrageous, and entirely lacking in substance. This is a completely inappropriate use of the legal process and must be deprecated.

 

326.      In the manner examined in this judgment, the fundamental basis for the allegations is utterly undermined by objective fact, as the plaintiff must know. Despite this, the plaintiff has persisted with the campaign, in which he has shown himself willing to involve others who are not parties to the proceedings at issue, in an obvious attempt to use the 'vehicle' of legal proceedings to cause damage to those whom he accuses.  

 

Consent and objection to an Isaac Wunder Order

327.      On day-2 of the hearing, during the course of Mr. Compton's oral submissions concerning the motion to dismiss the 2022 proceedings, the plaintiff interjected [at 12:11 p.m. on 20 February 2025, according to my note] to say he had "no problems with an Isaac Wunder Order" also stating "I will happily consent to one".

 

328.      Later on the same day [at 4:07 p.m. according to my note] with reference to the eleventh defendant's application in the 2022 proceedings, the plaintiff repeated "I've no problem with an Isaac Wunder order".

 

329.      However, on day-3 and with reference to the 2019 Proceedings, the plaintiff vigorously objected to an Isaac Wunder order, submitting that "if the court dismissed the proceedings, it would send a chilling message" also stating that an Isaac Wunder order "would be very penalising". 

 

Relevant principles

330.      I have carefully considered the principles articulated by Ms. Justice Whelan in Kearney and considered more recently by Ms. Justice Cahill in Hogan v Tanager DAC & Ors. [2024] IEHC 739 ("Hogan"). Earlier in this decision, I quoted para. 92 of Kearney and it is useful at this juncture to quote paras. 133 - 136 of Hogan:-

 

"133. The threshold for making an 'Isaac Wunder Order' is that the litigant against whom the order is sought has 'habitually or persistently instituted vexatious or frivolous civil proceedings' (Riordan v. Ireland (No. 4) [2001] 3 IR 365).

 

134. It is an order to be made only in 'very rare circumstances', as held by Costello J. in O'Malley v. Irish Nationwide Building Society (High Court, unreported, 21 January 1994), a case in which a "great number of proceedings" had been issued by the individual in question.  

 

135. This has been reiterated more recently in the separate concurring judgment of Collins J. in Irish Aviation v. Monks [2019] IECA 309 which emphasised 

'the exceptional nature of the Isaac Wunder jurisdiction and the care that needs to be taken to ensure that so-called Isaac Wunder orders are made only where the court called upon to make such an order is satisfied that it is proportionate and necessary to do so' (at [2]).

 

136. I am also mindful of the caution issued by Collins J. in that judgment that an 'Isaac Wunder Order' should not be treated as an ancillary order that results from, or automatically accompanies, an order dismissing a claim:

 

'It is, therefore, critically important that a court asked to make an Isaac Wunder order should anxiously scrutinise the grounds advanced for doing so. It should not be seen as some form of ancillary order that follows routinely or by default from the dismissal of a party's claim, whether on its merits or on a preliminary strike-out motion. That is so even if considerations of res judicata and/or Henderson v Henderson arise' (at [7])."

 

331.      This Court is very conscious that such an order should only be made where the necessity for same has been clearly made. A careful consideration of the evidence allows me to say that the plaintiff has used both the 2019 and 2022 proceedings as a 'platform' to say anything he wishes, to or about anyone he feels to have wronged him, regardless of the seriousness of the allegations, the absence of any basis for same, the evidence to the contrary, the damage likely to be caused, or whether the individual is a defendant in the proceedings in question, or not. This is not the purpose of litigation and the plaintiff's unacceptable conduct, which amounts to an abuse of the procedures of this court, must be halted. This is particularly so given the gravity of the allegations, including fraud and criminality, which the plaintiff has shown himself willing to level at others, despite the absence of a scintilla of evidence to support such gross allegations and the likely effect on those wrongly accused. Words matter. Yet, without a shred of evidence, the plaintiff contends inter alia that solicitors have dishonestly sought to gain advantage by perpetrating fraud. There could hardly be a more serious accusation to level at a professional solicitor. The potential for reputational damage as well as personal hurt is obvious. Such allegations simply cannot be made, absent a basis in evidence to support them. There is none in this case. The fact that the plaintiff represents himself means that no professional solicitor or Counsel was involved in the drafting of the pleadings. I mention this because no officer of the court could have 'stood over' pleadings containing the baseless allegations of fraud and criminality, made by the plaintiff. 

 

332.      The evidence, including the history of complaints, the multiple sets of proceedings relating to the same events, and the scurrilous and baseless nature of the allegations, allows for a finding that a dismissal of both sets of proceedings is unlikely to desist the plaintiff from maintaining his campaign.

 

333.      I am fortified in this view by the fact that the plaintiff interrupted Counsel on day-2 to volunteer his consent to an Isaac Wunder Order in the 2022 Proceedings but, on day 3, vigorously objected to an Isaac Wunder Order in the 2019 Proceedings (despite using the 2019 proceedings to make scurrilous and unsubstantiated allegations against all of the defendants in the 2022 Proceedings).

 

334.      Having regard to each of the principles outlined at para. 132 in Kearney, I am satisfied that, unless restrained by the court, the plaintiff is likely to continue using legal proceedings in a wholly inappropriate manner, namely, as the 'delivery method' for toxic and baseless allegations against Mr. Kelly and others.

 

335.      For the reasons set out in this judgment, this is one of the rare occasions where it is appropriate to make the Isaac Wunder Orders sought in the defendants' applications i.e. to grant relief per (i) para. 4 of the motion in the 2019 proceedings; and (ii) para. 4 in the first to tenth defendants' motion in the 2022 proceedings. 

 

336.      I am also satisfied that it is necessary and proportionate to make an Isaac Wunder Order restraining the plaintiff from instituting any further proceedings against the eleventh defendant in the 2022 proceeding, and I will do so per the "further or other relief" provision in para. e. of the eleventh defendant's motion, noting that the plaintiff also volunteered his consent to same.   

 

337.      In relation to costs, and having regard to s. 169 of the Legal Services Regulation Act, 2015, my preliminary view is that there is nothing which would justify a departure from the 'normal' rule that 'costs' should 'follow the event'. My preliminary view is that it would run contrary to the interests of justice not to award costs to the defendants who have been entirely successful in the present applications.

 

338.      I invite the parties to furnish, by Friday 25 April, an agreed draft of final orders to be made in each case. Both cases will also be listed before me at 10:30 am, on Thursday 1 May, for the purpose of dealing with any issue, including costs, which has not by then been agreed.