THE SUPREME COURT
31/99
Barrington J.
Keane J.
Murphy J.
COONEY

V

IRELAND and ORS.

JUDGMENT (ex-tempore) delivered on the 11th day of October, 1999 by Barrington, J 

The Plenary Summons in this case was issued on the 15th October, 1998. The Statement of Claim which is undated, and in rather unorthodox form, but which makes the complaint clear was filed at a later stage. The Defendants brought a Notice of Motion on the 14th December, 1998 to strike out the proceedings on the basis that they were an abuse of the process of the Court and that they were res judicata.

The background to the case was that there had been earlier judicial review proceedings arising out of the same dispute described in the Statement of Claim and those proceedings had come before Mr. Justice Smyth. Two issues had been decided in those proceedings, one was the issue of time he

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decided that those judicial review proceedings were out of time - but he also dealt with the merits of the complaint. On reading the note of the Judgment, prepared admittedly by Counsel, but of which Mr. Justice Smyth approved, not in writing, but at a later stage, it is quite clear that he dealt with the substantial dispute as well the dispute on the issue of time and that the Judgment is one which governs both issues and that Judgment was not appealed against and still stands.

The Plaintiff who is a lay litigant says the reason he didn’t appeal against it was that he felt he probably would lose the appeal on the time issue anyway so he therefore decided to raise what is precisely the same dispute by way of Plenary Summons. The Motion brought by the Defendants to strike out the Plenary Proceedings also came before Mr. Justice Smyth and Mr. Justice Smyth decided on the 11th January, 1999 that the dispute was the same dispute and accordingly he struck out the Plenary Summons as being an abuse of the process of the Court and as raising the principle of estoppel by means of res judicata. The Plaintiff has attempted to avoid the implications of the fact that that Judgment still stands by raising the learning to the effect that judicial review proceedings dealing with matters of public law do not in all cases raise an issue of estoppel by means of res judicata, but unfortunately, in the present case, it was quite clear that the parties to the proceedings are precisely the same

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parties and, apart from the time issue which is no longer relevant, the issues in the proceedings are precisely the same issues.

It is a sad case as far as the Plaintiff is concerned. But this Court is confronted with the fact that there is an unappealed Judgment of the High Court deciding the substantial issue in this case and this Court accordingly has no jurisdiction to entertain the present Appeal. It appears to us that the issue of res judicata has been properly raised and we can only dismiss the Appeal and affirm the Order of the learned High Court Judge.