Kiely v. Creative Labs (Ireland) Ltd. [2002] IESC 57 (19th June, 2002) 

THE SUPREME COURT

								RECORD No. 2000/9393P
								APPEAL No.  2001/325

Denham J.
Geoghegan J.
Fennelly J.

BETWEEN/
MAURICE KIELY
								PLAINTIFF/APPELLANT

v
                                                                                                                                                                                                                                                                                                            CREATIVE LABS. (IRELAND) LIMITED AND 
SZILVIA BENKOVSZKA
																				   DEFENDANTS/RESPONDENTS

Judgment delivered on the 19th day of June, 2002 by Denham J. [Nem Diss.]

1.	This case arises by way of an appeal from the decision of the High Court (Kearns J.)  given on 26th October, 2001.  The plaintiff/appellant is a lay litigant.

2.	The plaintiff/appellant (hereinafter referred to as the plaintiff) was employed by the first named defendant/respondent (hereinafter referred to as the employer) between the 24th March, 1997 and the 12th May, 1998 when the plaintiff resigned.  The plaintiff was employed for a second period by the employer between the 13th April, 1999 and the 6th September, 1999 working as a technical support agent at the employer’s premises in Dublin.  On the 6th September, 1999 the plaintiff was dismissed.
3.	The plaintiff instituted proceedings before the Employment Appeals Tribunal which came on for hearing on the 12th January, 2000.  The plaintiff did not have the required twelve month period of service in order to pursue a claim pursuant to the Unfair Dismissals Acts, 1977 to 1993 and the plaintiff’s proceedings were dismissed.

4.	On the 11th February, 2000 members of the management of the employer formed the opinion that the employer should make a complaint to An Garda Síochána about the harassment which they believed the plaintiff had inflicted upon an employee, the second named defendant/respondent, hereinafter referred to as the co-employee, and made such complaint.

5.	The plaintiff issued a civil summons in the Dublin District Court dated the 6th March, 2000 seeking damages for slander and citing the employer as the only defendant in those proceedings.  The District Court proceedings were subsequently withdrawn.  

6.	 The plaintiff then served Circuit Court proceedings in Dublin Circuit Court by way of civil bill dated the 20th March, 2000.  The civil bill sought damages for slander against the employer and co-employee.  A defence and counterclaim were filed.  On the 10th May, 2000 the Circuit Court granted:

“1.    An Interlocutory Injunction prohibiting the Plaintiff from making or attempting to make communication with the Second Named Defendant whether by telephone, letter, e-mail or otherwise.

2.     An Interlocutory Injunction prohibiting the Plaintiff from making or attempting to make any communication with any employee or former employee of the First Named Defendant whether by telephone, letter, e-mail or otherwise or publishing any statement concerning the Second Named Defendant.

3.     An Interlocutory Injunction prohibiting the Plaintiff from making or attempting to make any communication with or publishing any statement concerning the Second Named Defendant to any member of the Second Named Defendants family and/or friend and/or personal associate or associates of the Second Named Defendant.

4.     An Interlocutory Injunction prohibiting the Plaintiff from contacting any associated company of the First Named Defendant or any company which is a member of Creative Technology Limited Group, concerning the Second Named Defendant and/or the within proceedings or at all other than in writing through Ivor Fitzpatrick & Co Solicitors, 45, St. Stephens Green, Dublin 2.

And the Court Doth Order that the within proceedings be and the same are hereby struck out for being an abuse of process.

And the Court Doth make no Order as to costs.”

7.	The plaintiff did not appeal the decision of the Circuit Court.

8.	The plaintiff pursued a claim for unfair dismissal pursuant to Section 20(1) of the Industrial Relations Act, 1969.  By recommendation dated the 26th July, 2000 the Labour Court was satisfied that the employer did not act unfairly in terminating the claimant’s employment and recommended that “the claimant should now accept that he was not unfairly dismissed”.

9.	On the 14th August, 2000 the plaintiff issued a plenary summons in the High Court claiming that he has been falsely accused of a crime, that the allegation has been published and that his reputation has been damaged and that he has also suffered considerable psychological distress as a direct result of the allegation.

10.	The employer and co-employee brought a motion to the High Court seeking an order striking out the plenary process as being an abuse of process, as being frivolous and 
vexatious, and on the grounds that it disclosed no reasonable cause of action.  Further, an order was sought prohibiting the plaintiff from instituting legal proceedings of whatever nature against the defendants without leave of the court.

11.	On the 26th October, 2001 the High Court (Kearns J.) ordered that the plenary summons be struck out as being vexatious and an abuse of the processes of the court, and that the plaintiff be restrained from instituting legal proceedings against the defendants without first obtaining leave of the High Court.

12.	Against that decision the plaintiff has appealed to this court.  The plaintiff’s grounds of appeal, as filed in the notice of appeal, are:

1.	That the second named defendant has throughout not produced a sworn affidavit nor appeared in person in court to assert under oath that she in fact made this report which the first named defendant claims she made and upon which the first named defendant claims his action was based.
2.	That the High Court did not hear the plaintiff’s witness nor the evidence to support the plaintiff’s claim.
3.	That in the plaintiff’s view the High Court was embarrassed by the nature of the case and dismissed it for fear of scandal to the defendants, a foreign commercial company and a foreign national.

13.	Oral and written submissions were presented by the plaintiff in person.  The employer and co-employee were represented by counsel.

14.	The court has jurisdiction to order that a pleading be struck out on the ground that it discloses no reasonable cause of action, or is vexatious or frivolous: Order 19 Rule 28, Rules of the Superior Courts.  In addition the court has an inherent jurisdiction to restrain proceedings.  This jurisdiction was described by Keane C.J. in Riordan v. An Taoiseach and Ors. (Unreported, Supreme Court, 19th October, 2001) when he stated:

“It is, however, the case that there is vested in this court, as there is in the High Court an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious.  The court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens.  This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation.”

15.	I am satisfied that the three grounds upon which the plaintiff sought to appeal are unsustainable.  It was not necessary that the co-employee swear an affidavit or appear in court to give evidence of her report.  Nor was it necessary for the High Court to hear the plaintiff’s witnesses, as pleaded.  However, as the plaintiff is a lay litigant I have considered these grounds of appeal in their widest aspect, from the plaintiff’s point of view.

It is clear that there was evidence before the High Court upon which the learned trial judge could come to the conclusion to which he did.  Affidavits were before the High Court, two from Ian Dickson filed respectively on the 2nd day of November, 2000 and the 8th day of February, 2001, the affidavit of the plaintiff sworn the 13th day of December, 2000, and the many exhibits referred to in all the affidavits.  The affidavit filed on the 2nd November, 2000 specifically referred to the affidavit of the same deponent sworn in the Circuit Court proceedings on the 3rd May, 2000.  It was on foot of that affidavit and the exhibits therein that the Circuit Court struck out the proceedings as being abuse of process.

The plaintiff did not appeal the order of the Circuit Court.  Instead he started new, similar, proceedings in the High Court.  Even giving the plaintiff the benefit of being a lay litigant, when one court holds that proceedings are an abuse of process and strikes out the proceedings, it is entirely consistent that similar proceedings commenced in another court be found to be an abuse of process.  This is so both as being a finding consistent with the original decision and as being a further abuse in bringing similar proceedings in a second court, when the plaintiff had the route of appeal.

The plaintiff filed a third ground of appeal.  It does not constitute a stateable ground.  Indeed it is a scandalous ground of appeal and has no reality in fact or law.

Utilising the inherent jurisdiction of the court I would dismiss the appeal and affirm the order that the plaintiff be restrained from instituting legal proceedings of whatever nature whatsoever against either or both of the defendants without first obtaining the leave of the High Court.