APPROVED                                                               [2025] IEHC 63

 

 

 

THE HIGH COURT

 

2020 3497 P

 

BETWEEN

 

ALO MOHAN

 

 

PLAINTIFF

 

AND

 

 

REVENUE COMMISSIONERS

IRELAND AND THE ATTORNEY GENERAL

 

 

DEFENDANTS

 

 

 

JUDGMENT of Mr. Justice Garrett Simons delivered on 13 February 2025

 

 

Introduction

1.             This judgment is delivered in respect of an application to strike out the within proceedings on the basis that the proceedings disclose no reasonable cause of action and/or are bound to fail.  For the reasons which follow, the determination of the strike out application is to be deferred to allow the Plaintiff an opportunity to pursue an application for leave to amend his statement of claim. 

 

 

Legal test governing strike out application

2.             The strike out application has been brought pursuant to Order 19, rule 28 of the Rules of the Superior Courts.  This rule has been amended with effect from 22 September 2023 by the Rules of the Superior Courts (Order 19) 2023 (SI No. 456 of 2023).

3.             The amended Order 19, rule 28(1) now reads as follows:

"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."

 

4.             Order 19, rule 28(3) provides, in relevant part, that the court may have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

5.             Given that the amendment is relatively recent, there is little case law to date on the precise parameters of the legal test.  It is of assistance to a proper understanding of the legal test to consider the pre-amendment case law.

6.             Prior to the amendment, most strike out applications were made pursuant to the court's inherent jurisdiction rather than pursuant to the unamended version of Order 19, rule 28.  This is because the unamended rule had been directed to the content of the formal pleadings rather than to the underlying merits of the proceedings.  The unamended version of Order 19, rule 28 had been designed to deal with circumstances where the case as pleaded did not disclose any cause of action.  The court had been required to assume that the facts—however unlikely that they might appear—were as asserted in the pleadings.  By contrast, in an application pursuant to the court's inherent jurisdiction, the court could, to a very limited extent, consider the underlying merits of the case.  If it could be established that there was no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings could be dismissed as an abuse of process pursuant to the court's inherent jurisdiction.  

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.  The Supreme Court had consistently stated—in its case law on inherent jurisdiction applications—that whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss proceedings as being bound to fail is not a means for inviting the court to resolve issues on a summary basis. 

8.             See, for example, Keohane v. Hynes [2014] IESC 66 (at paragraphs 6.5 and 6.6) as follows:

"[...] 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.  However, as again noted by Murray J. in Jodifern, whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis.

 

It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff's case is very weak or where it is sought to have an early determination on some point of fact or law.  It is against that background that the extent of the court's entitlement to look at the facts needs to be judged."

 

9.             The effect of the amendment introduced by the Rules of the Superior Courts (Order 19) 2023 is to codify the existing jurisprudence.  This is apparent from the language used under the amended rule: the phrases "bound to fail" and "no reasonable chance of succeeding" echo the language used in the previous case law to describe the limits of the inherent jurisdiction.

10.         It seems to follow, by analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case.  If it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended rule. 

11.         An application to strike out proceedings will, almost by definition, have been brought at an early stage of the proceedings, at a time when the possibility of pursuing procedural mechanisms—such as the discovery of documents, interrogatories, and the power to subpoena witnesses—will not yet have been exhausted.  The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings.  As emphasised in the earlier case law, experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.  (See, by analogy, Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21, [2014] 2 IR 301).  It is not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended.  Rather, the court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail.

12.         A strike out application will not be appropriate where the issues of law raised are not straightforward.  See Jeffrey v. Minister for Justice, Equality and Defence [2019] IESC 27, [2020] 1 I.L.R.M. 67 (at paragraph 7.4).

13.         As discussed below, the strike out application in the present case is advanced, primarily, on the ground that the statement of claim discloses no reasonable cause of action.  The ground shares some of the territory occupied by the other grounds enumerated under the amended Order 19, rule 28(1).  It is, for example, axiomatic that a case, which discloses no reasonable cause of action on the pleadings, is one which is "bound to fail" or has "no reasonable chance of succeeding".  The ground is, however, broader.  It also captures cases where a deficiency in pleading is masking what would otherwise be a good cause of action. 

14.         Fair procedures dictate that a party to litigation must plead their case with precision.  This is to ensure that the opposing side can understand the case being made against them.  It is not enough for a party simply to set out a narrative of events and to expect the opposing side, and the court, to work out what legal remedies might arise. 

 

 

Procedural history

15.         The Plaintiff, Mr. Alo Mohan, is a farmer and had previously carried on business as a chicken farmer/grower.  The Plaintiff alleges that there has been, and continues to be, widespread tax evasion in the poultry sector. 

16.         One of the many allegations made is that the interposition of a co-operative society as an intermediary between poultry processors and individual farmers/growers is being used as a device to "harvest" VAT.  The implication being that the interposition seeks to exploit the differing VAT treatment of inputs as between the co-operative society, as a VAT registered entity, and individual farmers/growers who are subject to the flat rate scheme allowed for under section 86 of the Value-Added Tax Consolidation Act 2010.  It is further alleged that both the price of the grain/feed and the price of the grown chickens are being artificially inflated so as to increase the VAT recoverable. 

17.         The supposed benefit of the interposition of a co-operative society has been summarised, in the statement of claim, as follows:

"[...] Growers would no longer be required to pay VAT on their inputs, as they would be paid for by the Co-op, which, as a VAT-registered entity, could recover the VAT formally paid to the [Revenue Commissioners] by the Grower.  The recovered VAT would then be paid as a VAT bonus to the Growers in lieu of the price increase being sought.  The Processor further communicated to the negotiating party that all future price increases would be secured through the Co-op and not through CBL, by the Co-op increasing the feed price and the flesh price to fund the agreed increases in price out of increases in the quantum of Flat Rate VAT recovered by the Co-op."

 

18.         The Plaintiff alleges that he had been advised by his own accountant that the use of a co-operative society for this purpose is fraudulent and that the Plaintiff would commit criminal offences were he to participate.  For this reason, the Plaintiff says that he refused to participate in a co-operative society (Sicín Co-op) established in or about April 2013.  Thereafter, in or about December 2015, the Plaintiff refused to continue trading with the poultry processor.  The Plaintiff alleges that, as a result of his refusing to engage in VAT fraud, he has suffered loss and damage (including psychiatric/psychological injury).

19.         The present proceedings were instituted on 14 May 2020.  A statement of claim was delivered on 22 February 2021.  The Revenue Commissioners delivered a defence on 5 May 2021.  A reply to defence was delivered on 5 August 2021.

20.         The progress of the proceedings has been hindered from the outset by the deficient nature of the pleading in the statement of claim.  The statement of claim discloses no reasonable cause of action against the Revenue Commissioners.  Crucially, the statement of claim fails to plead the requisite ingredients of the tort of misfeasance in public office.  This deficiency is discussed further below, at paragraphs 31 and onwards.

21.         Separately, most of the complaints made in the statement of claim would appear to be statute-barred.  The statement of claim consists, largely, of a narrative of events which occurred more than six years prior to the institution of the proceedings.  It has since emerged, in the affidavits filed in the context of the various procedural motions discussed below, that the Plaintiff seeks to rely on acts or omissions of officials of the Revenue Commissioners over a period commencing in August/September 2014.  This is not apparent from the statement of claim as currently drafted.

22.         The deficient nature of the statement of claim led directly to the Plaintiff failing to obtain an order for discovery of documents against the Revenue Commissioners.  The Plaintiff had filed a motion on 31 March 2022 seeking the discovery of documents ("discovery motion").  The discovery motion came on for hearing on 9 February 2024 before Owens J.  The court was not satisfied that discovery was justified having regard to shortcomings in the statement of claim. 

23.         In the course of his ex tempore ruling, Owens J. cited the following passage from McMahon and Binchy, Law of Torts (Bloomsbury Professional, 4th edn., 2013, §19.92) which describes the tort of misfeasance in public office:

"Lord Steyn set out the ingredients of the tort in some detail. He stated first that the defendant must be a public officer, exercising powers as such. As to the crucial requirement concerning the defendant's state of mind, he stated:

 

'The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.'"

 

*Footnotes omitted

 

24.         The internal quotation is from the speech of Lord Steyn in Three Rivers District Council v. Governor and Company of the Bank of England (No 3) [2003] 2 AC 1.

25.         Owens J. emphasised the mental element of the tort of misfeasance in public office, holding that the statement of claim does not identify the necessary ingredients of the tort by reference to the requirement of knowledge of probable injury to the Plaintiff (or persons in the same class as the Plaintiff). 

26.         Owens J. adjourned the discovery motion generally with liberty to re-enter, observing that the issue might be resolved by the Plaintiff putting in a proper statement of claim or the proceedings being struck out depending on the view of another judge.  The mention of "another judge" is a reference to a separate motion which had been filed by the Revenue Commissioners on 11 January 2024 seeking to strike out the proceedings ("strike out application").  Owens J. was flagging the possibility that the outcome of the strike out application might be dispositive of the proceedings.

27.         Shortly after the discovery motion had been adjourned generally, the solicitors then representing the Plaintiff wrote to the Revenue Commissioners' solicitor indicating that they were preparing a motion to amend the pleadings.  In the events that transpired, however, no application for leave to amend was ever made.  The Plaintiff's solicitor filed a motion on 5 April 2024 to come off record.  This motion was not opposed by the Plaintiff and an order recording that the solicitor ceased to act in the proceedings was made on 3 July 2024.  The Plaintiff is now pursuing these proceedings as a litigant in person.

28.         The strike out application came on for hearing before me on 16 January 2025.  The application had been called on by the parties for two hours.  It soon became apparent that this time estimate was overly optimistic.  It should be emphasised that it is essential to the proper administration of the Non-Jury List that parties provide an accurate estimate of the hearing time required for any given case.  The efficient assignment of judges, registrars and courtrooms is dependent on cases finishing within the hearing time allotted.  As it happens, it had been possible, with the co-operation of the registrar, to extend the hearing time for this case to four hours.  Parties should not expect to be shown such indulgence.

29.         At the outset of the hearing, the Plaintiff applied for leave to call oral evidence from a witness.  Leave was refused in circumstances where strike out applications are heard on affidavit evidence only, subject in special circumstances to the possibility of cross-examination of deponents on their affidavits.  This is because, as discussed under the previous heading, the court does not engage in depth with issues of credibility on a strike out application.  Here, the witness sought to be called by the Plaintiff had not previously sworn an affidavit in respect of the strike out application.  The Plaintiff had ample opportunity to arrange for an affidavit to be filed by this witness prior to the hearing of the motion but failed to do so.

30.         For completeness, it should be recorded that the Plaintiff has instituted parallel proceedings against, inter alia, the poultry processor with whom he had previously dealt and a number of State entities including, relevantly, the Revenue Commissioners.  The parallel proceedings were issued on 27 July 2018 and are entitled Mohan & Ors v. Department of An Taoiseach & Ors (2018 6927 P).

 

 

Discussion and decision

 

Pleadings disclose no reasonable cause of action

31.         The strike out application is advanced, primarily, on the grounds that the statement of claim discloses no reasonable cause of action.  The only substantive relief sought in the proceedings is damages for misfeasance in public office.  The parties are agreed that an authoritative summary of the ingredients of this tort is to be found in Eustace v. Drogheda Borough Council [2019] IEHC 455.  There, the High Court (Ní Raifeartaigh J.) considered the leading judgment of the Supreme Court in Kennedy v. Law Society of Ireland [2005] IESC 23, [2005] 3 IR 228 which, in turn, approved of the approach taken by the UK House of Lords in Three Rivers District Council v. Governor and Company of the Bank of England (No 3) (cited above).

32.         The judgment in Eustace emphasises the high threshold to be met in proceedings for misfeasance in public office as follows (at paragraph 13):

"[...] the threshold for establishing subjective reckless is high and that the evidence from which an inference of the necessary state of mind may be inferred must be clear.  Negligence, even gross negligence, is not sufficient.  The standard is not that of a reasonable person in the office but rather whether the actual decision-maker had knowledge of the risk and took the risk anyway. The distinction is a fine one both in theory and in practice."

 

33.         The statement of claim in the present case fails to plead the requisite ingredients of the tort of misfeasance in public office.  Four non-exhaustive examples suffice to illustrate the shortcomings in the statement of claim.  First, there is no plea in respect of the mental element of the tort: a plaintiff must establish not only that an official acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure the plaintiff or a person of a class of which the plaintiff was a member.  Secondly, proper particulars have not been provided of the acts or omissions said to represent misfeasance.  Neither the identity of the officials said to be involved, nor the dates of the acts or omissions, have been pleaded.  Thirdly, there is no plea which articulates any causal connection between the alleged conduct of any official within the Revenue Commissioners and any loss said to have been suffered by Mr. Mohan as plaintiff.  The wording of the statement of claim appears to attribute the loss to the actions of a third party, i.e. the poultry processor.  Finally, no attempt whatsoever has been made to quantify the losses sought to be recovered.

34.         Mr. Mohan has been aware that the pleadings are deficient since at least 9 February 2024.  This is the date upon which the High Court (Owens J.) declined to direct the discovery of documents having regard to the shortcomings in the statement of claim.  Instead, the discovery motion had been adjourned generally with liberty to re-enter.  The response made on behalf of Mr. Mohan by his then solicitors had been to write to the Revenue Commissioners on 22 February 2024 indicating that the solicitors were preparing a motion to amend the pleadings.  The letter went on to request that the hearing of the strike out application be adjourned to facilitate the Plaintiff in retaining new senior counsel to put forward draft amendments to the statement of claim.  As explained earlier, no application for leave to amend was ever made.  The relationship between the Plaintiff and his solicitors broke down, and the solicitors were permitted to come off record on 3 July 2024.

35.         If the proceedings were to go to trial on the basis of the current pleadings, the action would have to be dismissed.  This is because even if the Plaintiff were to substantiate the allegations pleaded in the statement of claim, this would not establish misfeasance in public office.  The statement of claim, in its current form, fails to disclose a cause of action.

36.         The case law makes it clear that a court hearing a strike out application should consider whether the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it; if so, then the action should not be dismissed (Sun Fat Chan v. Osseous Ltd [1992] 1 IR 425).  This reflects the principle that the jurisdiction to strike out proceedings should be exercised sparingly and as a matter of last resort. 

37.         The practical operation of this principle has been a matter of some debate.  There is a helpful discussion of the relevant case law in Delany and McGrath on Civil Procedure (Round Hall, 5th edn., 2023) at §16-33 to §16-37.  It has been queried as to whether—in the absence of an intimation by a plaintiff of an intention to seek leave to amend—there is an obligation on the court to identify potential amendments itself.  It would appear to cut against the adversarial nature of litigation were the court to propose amendments of its own volition. 

38.         The position in the present case is that the Plaintiff now intends to seek leave to amend the statement of claim.  This intention was first indicated by him in an affidavit filed on 30 May 2024.  A revised statement of claim had been exhibited as part of that affidavit.  A second, slightly modified version of the revised statement of claim has been exhibited in a subsequent affidavit filed on 6 June 2024.  To date, the Plaintiff has not filed a motion seeking leave to amend.

39.         The question which now arises for decision is whether the court should defer its determination on the strike out application to allow the Plaintiff to pursue an application for leave to amend.  The court must seek to achieve a balance between the competing interests of the parties.  On one side of the scales, a deferral of the strike out application will result in yet further delay in proceedings which relate to events which occurred more than a decade ago.  On the other side, the refusal of a deferral runs the risk that proceedings, which potentially might have been capable of being saved by way of an appropriate amendment, will be struck out summarily. 

40.         In performing the balancing exercise, the court is entitled to make some assessment of the likelihood of the proceedings being saved by way of an appropriate amendment.  This assessment will be informed by the grounds upon which the strike out application is being pursued.  If, for example, the strike out application is predicated on an allegation that the proceedings amount to an abuse of the process because the issues are res judicata, then it is unlikely that there is any amendment capable of saving same.  Different considerations may pertain where the strike out application is pursued on the ground that the pleadings disclose no reasonable cause of action.  Whereas this ground may overlap with other of the enumerated grounds under Order 19, rule 28, and thus capture cases which are "bound to fail" or have "no reasonable chance of succeeding", it is broader.  It also captures cases where a deficiency in pleading is masking what would otherwise be a good cause of action.  It is essential that a plaintiff pleads their case in a coherent manner to ensure that a defendant can understand the case against it.  A court may be more willing to allow time for the making of an application for leave to amend where the strike out application is grounded on a deficiency of this type.

41.         It is apparent from the affidavits and exhibits filed by the Plaintiff that he seeks to elaborate upon the extant statement of claim by providing details of the acts and omissions which he alleges constitute misfeasance in public office.  The Plaintiff has specified the dates of these alleged acts and omissions, and has identified the officials said to have been involved.  For example, the Plaintiff cites what he characterises as a "letter of comfort" supposedly provided by a named revenue official to the co-operative society which indicated that its scheme is in line with the Revenue Commissioners' understanding (of the VAT legislation) and that any challenge to the business model would be prospective only.

42.         The Plaintiff has also made some attempt in his draft amended statement of claim to outline a causal link between these events and the loss and damage alleged to have been suffered.  These attempts do not yet go far enough to disclose a reasonable cause of action in misfeasance in public office.  However, for the limited purpose of deciding whether to defer determination of the strike out application, the Plaintiff has met the low threshold of satisfying the court that there is a realistic possibility that the deficiency in pleading might be rectified by way of an appropriate amendment.  It is a separate matter as to whether the claim is one which is "bound to fail" or has "no reasonable chance of succeeding".

 

 

Statute of Limitations 1957

43.         The second broad ground upon which the strike out application is pursued is that the proceedings are statute barred.  More specifically, the Revenue Commissioners contend that the proceedings were commenced long after the six year limitation period applicable to the tort of misfeasance in public office was spent.  It is said that, even taking the proceedings at their height, the matters upon which they rest arose more than a decade before the proceedings were commenced.  It is further said that the matters were known to the Plaintiff at the time. 

44.         The Revenue Commissioners' contentions are predicated on the content of the extant statement of claim.  It is correct to say that most of the events pleaded in the statement of claim are alleged to have occurred more than six years prior to the date of the institution of these proceedings (14 May 2020).  However, it is now apparent from the content of the affidavits sworn by Mr. Mohan that certain events, which are undated in the statement of claim, are alleged to have occurred over a period commencing in August/September 2014, i.e. at a time within the six year limitation period. 

45.         It would not be appropriate to attempt to address this aspect of the strike out application further until such time as the Plaintiff has had an opportunity to seek leave to amend his statement of claim.  It may well be that if leave to amend were to be granted, then the argument that the pleadings should be struck out as time-barred might fall away in part at least.  It would be premature to address this issue now on the basis of the current version of the statement of claim.

 

 

Allegation of perjury

46.         The Plaintiff has made an allegation of perjury against the solicitor who has sworn the affidavit grounding the strike out application.  The allegation centres on the following paragraph of the solicitor's affidavit:

"It appears that the Plaintiff continued trading with the processor named in the Statement of Claim and the co-operative established in 2011, despite the matters complained of.  There is no discernible plea that this trade was influenced by the alleged failure of Revenue (not admitted by Revenue) to take action in relation to the matters complained of."

 

47.         The Plaintiff submits that the affidavit is factually incorrect.  The Plaintiff's averred position is that he had refused to participate in a co-operative society (Sicín Co-op) established in or about April 2013.  Thereafter, the Plaintiff refused to continue trading with the poultry processor in or about December 2015.

48.         It is neither necessary nor appropriate, for the purpose of the present interim judgment, for the court to make definitive findings of fact on the central issues in the proceedings.  This judgment goes no further than affording time for the making of an application for leave to amend the statement of claim.  It does not make any substantive findings.  Even allowing, for the sake of argument, that the chronology is as averred to by the Plaintiff, however, there is no basis for the allegation of perjury.  The paragraph complained of has to be seen in its context.  The paragraph forms part of an affidavit grounding an application to strike out the proceedings by reference to the content of the statement of claim.  The solicitor swearing the affidavit does not assert that she has any first-hand knowledge of the events.  Rather, the affidavit consists, for the most part, of a summary of the complaints made in the statement of claim.  In a small number of instances, the solicitor refers to having been advised of certain matters by her client, the Revenue Commissioners. 

49.         If and insofar as the solicitor has interpreted the statement of claim as indicating that the Plaintiff had ever traded with or through the co-operative society, this would appear to be a mistake caused by the diffuse nature of the pleading.  The statement of claim is very badly drafted and, in particular, the chronology is difficult to follow because it jumps backward and forward in time.  The statement of claim does not identify the precise date upon which the co-operative society had been established.  The wording of paragraph 29 implies that it had been established as early as December 2011.  In a properly constructed statement of claim, the paragraphs describing the establishment of the co-operative society would have been followed by a narrative of the events surrounding the Plaintiff's dealings with officials of the Revenue Commissioners during the period commencing in August/September 2014.  A properly constructed statement of claim would also have pleaded the consequences of the Plaintiff having refused to participate in the co-operative society.  Instead, the statement of claim, having briefly described events of 2011, immediately jumps ahead in time to the year 2017.  The references to the dealings with the Revenue Commissioners appear at an earlier point in the statement of claim (paragraph 17) and do not identify the date of same.

50.         Having regard to the non-linear and illogical structure of the statement of claim, it is scarcely surprising that it was not apparent to the solicitor that the Plaintiff's case is that his refusal to participate in the co-operative society at any stage has caused him loss and damage.  For the purpose of the allegation of perjury, the crucial point is that the solicitor never purported to give first-hand evidence to the effect that the Plaintiff had traded with the co-operative society.  There is no basis, therefore, for the allegation of perjury.

 

 

Conclusion and form of order

51.         For the reasons explained, the determination of the strike out application is to be deferred to allow the Plaintiff an opportunity to pursue an application for leave to amend his statement of claim pursuant to Order 28 of the Rules of the Superior Courts.  The deferral is conditional on the Plaintiff filing the requisite notice of motion and grounding affidavit in the Central Office of the High Court, and serving same on the Office of the Revenue Solicitor, within six weeks of today's date, i.e. by 27 March 2025.  The motion should be made returnable, for mention only, to the Non-Jury List on 30 April 2025.  To ensure that this is done, the Plaintiff should present a copy of today's order at the public counter of the Central Office at the time of filing the motion and draw the relevant official's attention to the return date.

52.         The grounding affidavit should exhibit a copy of the proposed amended statement of claim, with all additions and deletions clearly indicated by underlining and strike-through, respectively.

53.         It should be reiterated that this judgment goes no further than to allow an adjournment to facilitate the making of an application for leave to amend.  Nothing in this judgment should be interpreted as pre-empting, in any way, the outcome of the mooted application for leave to amend.  This judgment does not entail any endorsement of any of the draft revised statements of claim which have been exhibited.  The drafts do not remedy all of the shortcomings in the extant statement of claim.  The drafts go no further than providing better particulars of the acts or omissions alleged.  Without being exhaustive: the drafts do not address satisfactorily the mental element of the tort of misfeasance in public office nor the issue of causation.

54.         It should also be observed that the drafts involve the introduction of a number of new causes of action, over and above the existing claim for damages for misfeasance in public office.  This judgment should not be understood as entailing an implicit acceptance that the Plaintiff is entitled to introduce new causes of action.  Rather, it will be a matter for the judge hearing the application for leave to amend to determine, by reference to the principles which are well established in the case law, whether new causes of action may be introduced.  This will require consideration, inter alia, of whether any new cause of action sought to be introduced is one that arises out of the same, or substantially the same, set of facts as have already been pleaded.  In principle, an application for leave to amend may be refused on the basis that it would be unfair to a defendant to deprive them of a defence under the Statute of Limitations if the cause of action is entirely new and is not based on facts already pleaded.

55.         Put shortly, the application for leave to amend the statement of claim will stand or fall on its merits.  Nothing in this interim judgment should be understood as limiting the arguments which either side may wish to advance on such an application, still less as predicting the outcome of such application.  At the risk of belabouring the point, this judgment goes no further than allowing the Plaintiff the time to make an application for leave to amend.  

56.         The costs to date of the strike out application will be reserved pending the application for leave to amend.

 

 

Appearances

The plaintiff appeared as a litigant in person

Benedict Ó Floinn SC and Fergus Ryan for the first named defendant instructed by the Office of the Revenue Solicitor