Strict Test For Dismissing Plaintiff's Claim

A recent decision has reaffirmed that a strict test will be applied where a defendant seeks to strike out a claim against it on the basis that no case against the defendant can be demonstrated.1 The Irish courts have been slow to strike out a plaintiff's case based on the pleadings and this decision shows that it is only in exceptional cases that such an application will prevail.


The plaintiff claimed that it had entered into an agreement with the defendant that it would advance a sum of up to €3.8 million to the defendant on terms set out in the statement of claim. As part of the alleged agreement, the plaintiff claimed that it had advanced €2.2 million to the defendant, "which for expediency was paid from the bank account of Mr Derek O'Leary and Ms Linda O'Leary to the account of the defendant". The plaintiff claimed that the moneys had not been repaid and sought judgment against the defendant for damages and other reliefs. The defendant contended that it never received moneys from the plaintiff and instead claimed that any moneys lent to the defendant were loaned by Mr O'Leary pursuant to an agreement entered into personally between him and the defendant.


The defendant brought an application to dismiss the plaintiff's claim under Order 19, Rule 28 of the Rules the Superior Courts, on the grounds that the plaintiff's statement of claim disclosed no reasonable cause of action or the plaintiff's claim was frivolous or vexatious, and the inherent jurisdiction of the court applied on the grounds that the plaintiff's claim was frivolous, vexatious or bound to fail.


Order 19, Rule 28

Judge McGovern cited Order 19, Rule 28 to the effect that the court's jurisdiction was limited to striking out pleadings where they disclosed no reasonable cause of action or answer or where the claim is shown by the pleadings to be frivolous or vexatious. He also cited McCabe v Harding,2 where Judge O'Higgins observed that for Rule 28 to apply "vexation or frivolity must appear from the pleadings alone". McGovern went on to note that the court had to consider the pleadings only and was to assume that any statements of fact contained in the pleadings were true and could be proved. Applying those principles in this case, it was not possible to conclude that the pleadings were frivolous or vexatious. There was nothing by way of prior litigation between the parties that suggested that these matters had already been canvassed or decided...

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