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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rayan Restaurant Ltd -v- Kean p/a Kean Solicitors & Anor [2012] IEHC 29 (17 January 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H29.html Cite as: [2012] IEHC 29 |
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Judgment Title: Rayan Restaurant Ltd -v- Kean p/a Kean Solicitors & Anor Composition of Court: Judgment by: White J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 29 THE HIGH COURT 2010 4539 P BETWEEN RAYAN RESTAURANT LIMITED PLAINTIFF AND
GERALD KEAN PRACTISING AS KEAN SOLICITORS AND FRANCIS MCGAGH DEFENDANTS Judgment of Mr Justice Michael White delivered the 17th of January 2012 1. This matter comes before the court by way of three separate notices of motion.
(2) A separate notice of motion on behalf of the second named defendant, Francis McGagh, issued on 24th May, 2011, returnable for 11th July, 2011, seeking an order pursuant to O. 29 of the Superior court rules, and s. 390 of the Companies Act 1963, for security for costs. (3) A notice of motion issued on behalf of the first named defendant, Gerald Kean, seeking a dismiss of the plaintiff’s claim, an order pursuant to O. 49, r. 6 seeking consolidation with proceedings Record No. 2006/1249P Djemal Mennad & Fatima Zohra Azizi .v. Kean, an order pursuant to O. 29 for security for costs, an order pursuant to O. 99, r. 7 for costs improperly incurred, and further and other relief. 3. The court received the following written submissions.
(2) Submissions on behalf of the second named defendant seeking security for costs. (3) Submissions on behalf of the first named defendant in relation to the motion for security for costs and consolidation of proceedings. (4) Submissions on behalf of the plaintiff resisting an application for security for costs. The Substantive Proceedings 6. The statement of claim was delivered on 23rd December, 2010. The claim relates to the conduct of Circuit Court proceedings, finalised by court order on 17th November, 2004, an appeal to the High Court , when an order on 18th April, 2005, for security for costs, was not complied with, which resulted in the appeal being struck out on 23rd January, 2006. 7. The plaintiff in these proceedings the plaintiff also in the Circuit Court proceedings has alleged, the following particulars of breach of contract negligence and breach of duty.
(2) Failing to plead relief against forfeiture of the lease, and failing to advance the argument at the court hearing, that there had been no valid forfeiture of the company’s leasehold interest, and that the taking over of the exclusive running of the restaurant by Claudia Puscas to the exclusion of the plaintiff could not be used by the landlord as a means of forfeiture. (3) Advising the plaintiff not to proceed with interlocutory relief, and not applying for interlocutory relief. (4) Failing to advise on the appropriate claim for damages and unlawful retention and use of the plaintiff’s possessions and equipment. (5) Failing to prepare the case for the Circuit Court and failing or neglecting to follow the instructions of the plaintiff in the conduct and presentation of the case. (6) Failing to apply to Judge Reynolds-Buckley to excuse herself from the proceedings on the grounds of apparent bias. (7) Failing to advise the plaintiff on the material and evidence and defences open to it necessary to resist an application for security for costs, and to argue it effectively at the High Court hearing. (8) Failing to procure appropriate accounting or other financial evidence or documentation with a view to establishing the causal connection between the plaintiff’s inability to pay costs and the defendants’ alleged wrongdoing and permitting the motion to proceed without this documentation. (9) Failing to appear and represent the company’s interests when the quantum of security was fixed before the County Registrar for the County of Westmeath on 27th June, 2005. 8. Rayan Restaurant Limited the plaintiff by indenture of 1st August, 2002, took an assignment of a lease of premises at High Street, Athlone, Co. Westmeath. The original lease dated 20th December, 1996, was for a term of 35 years from 1st January, 1997, with a rent reserved at IR£36,000 per annum to be paid yearly and proportionately for any fraction of a year. The tenant also had a responsibility to make a contribution towards the insurance and to discharge rates including water rates. There was a responsibility under the lease to pay interest if the rent due remained outstanding after seven days. There was a covenant to pay the rent and a clause at p. 14 of the lease which stated:-
(2) A revised rent of €45,000 up to the 31 December 2006 payable quarterly in advance in the sum of €11,250 per quarter. (3) A rent free period to 1/9/2002 and reduced rent from 1/9/2002 –to- 18 December 2002 of €600 per month, thereafter the full rent. (4) Djemal Mennad to give a personal guarantee. 11. The intention of the plaintiff was to set up a restaurant in the premises to be known as “Du Bella.” For this purpose a separate company was incorporated to run the restaurant Julia’s Company Restaurant Limited and it was intended that Djemal Mennad a director of the plaintiff be a director of Julia’s Company Restaurant Limited and a 50% shareholder and that Claudia Puscas was to be the manager of the restaurant on a day to day basis and become a director of this Company and an equal shareholder. 12. The restaurant opened for business in or around 20th May, 2003. The agreement between Djemal Mennad and Claudia Puscas was concluded in or around February 2003. A dispute developed between them. 13. Fatima Zohra Azizi in her affidavit of 13th August, 2003, averred that Claudia Puscas was to pay the sum of €70,000 in order to become an equal shareholder in Julia’s Company Restaurant Limited but only paid the sum of €5,000. She was to be paid €350 a week to run the restaurant. It was the responsibility of Julia’s Company Restaurant Limited to discharge all outgoings on the property. It was accepted by the plaintiff that €11,250 was due in rent at the beginning of July 2003. 14. It was stated in the judgment of Budd J. delivered on 18th April, 2005, that in an affidavit sworn on 4th March, 2005, Patrick J. Farry asserted on behalf of Claudia Puscas that it was the fault of Djemal Mennad that financial difficulties arose, that he had obtained €52,000 from Claudia Puscas and had failed to invest this money in the business of the first named defendant to obtain the landlord’s approval for the agreed assignment of the lease from the plaintiff to the first named defendant, and that his failure to comply with planning and other statutory requirements caused the losses of which he complained. 15. According to the affidavit of Francis McGagh sworn on 15th April, 2011, at para. 22, there had been arrears of rent from the period 1st January, 2003 and that the landlord had brought summary proceedings claiming €22,500 and the plaintiff agreed to lodge €11,250 in court the rent for the first quarter of 2003. The pleadings in those proceedings have not been exhibited. 16. The plaintiff alleges it was excluded from the restaurant premises the locks having been changed in or around 24th July, 2003. 17. Miss Azizi did not seem to be aware until the first court hearing on 15th August, that it was the landlord, Bartholomew Flynn, who had re-entered the premises on that date alleging a breach of covenant in the lease to pay rent. 18. The plaintiff alleges it had spent €110,000 in fitting out the premises as a restaurant. The Original Circuit Court Proceedings the Subject Matter of the Claim 20. An Equity Civil Bill was issued on 15th August, 2003, by Hughes Kehoe & Co., Solicitors for the plaintiff against Julia’s Company Restaurant Limited and Claudia Puscas, defendants. 21. The matter came before the Circuit Court on 15th August, 2003, when Buttimer J. granted liberty to the plaintiff to serve a notice of motion on the defendants. 22. There was a letter of 18th August, 2003, from Margaret O’Neill, Chief Clerk, of the Circuit Court to Elizabeth Sharkey, the County Registrar for Co. Westmeath in respect of papers received from Hughes, Kehoe & Co., Solicitors expressing the understanding that Buttimer J. did not consider the matter sufficiently urgent to grant an ex parte application in Carlow the previous Friday. 23. The matter again came before the Circuit Court on 21st August, 2002, and was adjourned to 27th August, 2003. A number of interim orders were made by Haugh J. None of these orders have been exhibited. 24. By letter of 21st August, 2003, Hughes, Kehoe & Co., Solicitors wrote to Kean’s Solicitors, indicating that due to a conflict of interest which had become apparent on 21st August, they had to come off record for the plaintiff. 25. Kean’s Solicitors came on record at the end of August 2003. 26. There was reference in that letter to the filing and serving of an amended Civil Bill on Mr. Barra Flynn, Solicitor. 27. An affidavit was sworn by Fatima Zhora Azizi, a director of the plaintiff Company on 13th August, 2003, grounding an application by way of notice of motion for interlocutory relief. 28. An amended Civil Bill joining Bartholomew Flynn as a co-defendant and dated 12th September, 2003, has been exhibited. 29. It seems that the case was listed at Sligo Circuit Court on 16th October, 2003 and at Portlaoise Circuit Court on 24th October, 2003, when the motion for interlocutory relief was struck out against the third named defendant with the costs of the application reserved. There was a reference in the order to a previous order of Her Honour Judge Delahunt which has not been exhibited. There is reference to a motion for summary judgment which was struck out and which is not exhibited. There was an order for discovery and the proceedings were adjourned to 10th February, 2004. 30. A further amended Equity Civil Bill was prepared and was filed in the Circuit Court Office in Portlaoise on 7th February, 2004 and the amendment added at para. 8 to the plaintiff’s claim stated:-
33. By letter of 28th October, 2003, Keans, Solicitors, wrote to Imelda Grogan of the County Registrar’s Office, the Courthouse, Portlaoise indicating that an application had been made for an early hearing date before Judge Reynolds on 24th October, 2003, and that the case would probably receive a date in the Supplemental List on 10th February or on 23rd March, 2004. The letter sought an earlier date for hearing. 34. There was also a letter of 15th April, 2004, from Elizabeth Sharkey, the County Registrar for Co. Westmeath to His Honour Judge Kennedy, the permanent judge of the circuit in which it was confirmed that Tuesday and Wednesday, 6th and 7th July, 2004, had been set aside for the hearing of the case. 35. This seemingly had to be taken out of those dates because of the death of Barra Flynn, the third named defendant and put back to the next special sittings which were beginning on 16th November. 36. The case was heard in full over two days on 16th and 17th November, 2004, at Mullingar Circuit Court by Her Honour Judge Reynolds-Buckley and orders made as follows:-
(2) The plaintiff’s claim as against the defendants was dismissed with costs to include reserved costs against the second named defendant with an order over to the third party. (3) A declaration in terms of para. A of the relief sought on the third named defendant’s counterclaim. (4) An order for costs of the third named defendant’s counterclaim against the second named defendant with an order over to the third party. (5) The monies lodged in court by the plaintiff remain in court pending the determination of the proposed proceedings by the second named defendant with liberty to apply. (6) An order refusing the plaintiff’s application for a stay on the aforesaid orders. 38. Claudia Puscas also seems to have given evidence. There is no doubt that there was a full plenary hearing, where all relevant parties were represented. The Appeal to the High Court and the Order for Security for Costs 40. Full pleadings have not been exhibited before this Court. 41. At some stage Djemal Mennad was joined as a third party to the proceedings. 42. Two separate notices of motion were issued for security of costs, on behalf of the First and second named defendants and on behalf of the third named defendant Catherine Murphy Flynn. 43. Declan O’Flaherty, Solicitor swore an affidavit on 8th February, 2005 and a supplemental affidavit on 3rd March 2005. Patrick J. Farry, Solicitor, on behalf of the first and second named defendants swore an affidavit on 14th February, 2005 and a supplemental affidavit on 4th March, 2005. Fatima Zohra Azizi swore a replying affidavit on 18th February, 2005, and a supplemental affidavit on 11th April, 2005. The affidavits of 4th March and 11th April were not exhibited in this Court. 44. The affidavit of Fatima Zohra Azizi sworn on 18th February, did not have any exhibits. I do not know if there were exhibits attached to the affidavit of 11th April. 45. A written judgment was delivered by Budd J. on 18th April, 2005. 46. Mr. Farry in his Affidavit exhibited a Companies Registration Office Search dated 8th February, 2005, showing no annual returns filed and that the company was first registered on 16th April, 2002. 47. Budd J. referred to Jack O’Toole Limited v. McKeown Kelly Associates and Wicklow County Council [1986] IR 277 at 283 quoting Finlay C.J. as stating:-
49. He went on to state referring to the plaintiff:-
Separate High Court Proceedings and Appeal to the Supreme Court Separate High Court Proceedings for Professional Negligence The Jurisdiction of the Court to Strike Out Proceedings (1) Order 19 Rule 28
55. The court in dealing with an application pursuant to O. 19, r. 28 must deal with it on the pleadings only, and ignore any other extraneous evidence. 56. Documentation referred to in the plenary summons and statement of claim can be examined. 57. In Aer Rianta c.p.t v. Ryanair Limited [2004] I.R. Denham J. at 509 states:-
An application by way of motion under O. 19, r. 28 is decided on the assumption that the statements in the statement of claim are true and will be proved at the trial. Thus this motion relates to and is grounded on the statement of claim of the plaintiff”.
60. In the High Court case Barry v. Buckley [1981] I.R. at 308, Costello J. stated:-
62. The court must also be careful to ascertain whether or not the plaintiff’s case can be remedied by some amendment of the pleadings and also be confident that no matter what may arise in discovery where at the time of the action the plaintiff’s case could not succeed. Generally speaking the jurisdiction is exercised in circumstances where the facts are clear. 63. In exercising its jurisdiction under O. 19, r. 28 and its inherent jurisdiction there is bound to be a certain overlap. 64. In exercising its inherent jurisdiction in assessing the question as to whether the proceedings are vexatious the court is entitled to look at the whole history of the dispute. 65. In Riordan v. An Taoiseach [2001] 4 I.R. at 465 O Caoimh J. stated:-
(b) Where it’s obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief. (c) Where the action is brought for an improper purpose including the harassment and oppression of other parties by multi various proceedings brought for purposes other than the assertion of legitimate rights. (d) Where issues tend to be rolled forward into subsequent actions and repeated and supplemented often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings. (e) Where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings. (f) Where the respondent persistently takes on successful appeals from judicial decisions.
Jurisdiction of the Court in Respect of Security for Costs Pursuant to Statute and the Rules of the Superior Courts
‘1. In order to succeed in obtaining security for costs an initial onus rests upon the moving party to establish
(b) That the plaintiff will not be able to pay the moving party’s costs if the moving party be successful. The most common examples of such special circumstances include cases where a plaintiff’s inability to discharge the defendant’s costs of successfully defending the action concerned flow from the wrong allegedly committed by the moving party or where there has been delay by the moving party in seeking the Order sought. The list of special circumstances referred to is not, of course, exhaustive”. 70. I have already referred to the term in the lease allowing the landlord to re-enter for non payment of rent. Section 14 of the Conveyancing Act 1881, governs the law on notice for breach of the covenants. 71. Section 14(8) exempts from notice any re-entry for non payment of rent. It states:-
73. In Re Erris Investments Limited [1991] ILRM at 381, Carroll J. stated:-
“And the Court has a general discretion to grant whatever relief it thinks fit in the light of the parties conduct and all the other circumstances of the case, there are no fixed rules for the exercise of this discretion which is administered by the Courts in general equitable principles”. It is clear in my view from the perusal of the various authorities which have been opened to me on this aspect that the courts in general strive not to place rules or restrictions on the exercise of judicial discretion in relation to relief against forfeiture.
‘The nature of the discretion exercised by the Courts of Equity in granting relief against forfeiture is hardly applicable or applicable to the same extent, at any rate where the court is dealing with substantial commercial transactions in which the Lessor and Lessee are on equal terms’. I take the overall view that in order to exercise my discretion fairly, I must take into account the conduct of the parties, the wilfulness of any breach by the tenant, the general circumstances particular to the issue, the nature of the commercial transaction the subject matter of the lease, whether the essentials of the bargain can be secured, the value of the property, the extent of the equality between the parties, the future prospects for their relationship, the fact that even in cases of wilful breaches it is not necessary to find an exceptional case before granting relief against forfeiture and then apply general equitable principles in reaching a conclusion.” 76. This matter has not been dealt with comprehensively in a judgment of the Irish Superior Courts. 77. In Behan v. McGinley and Behan v. The Governor & Company of the Bank of Ireland & Ors [2008] IEHC 18, a judgment of Irvine J. the learned judge stated at p. 31 of her judgment:-
78. It is well established law that a solicitor can be found to be negligent in the carrying out of any business entrusted to him by a client. The standard of care is set out in Roche v. Peilow (trading as William J. Shannon & Co.) [1986] ILRM, Griffin J. stated at p 200:-
79. In Arthur J.S. Hall & Company v. Simons [2002] 1 A.C. at 615 the head note of the judgment at para (1) states:-
‘(b) Invidious Judgments Then it is said that while it is difficult enough to decide what would have happened at a trial which did not in fact take place, it may become positively invidious to decide how a judge who actually heard the case would have reacted if the advocate had advanced a different argument or called different evidence. Some judges are most receptive to certain kinds of points than others. I think this is an imaginary problem. Whatever may have been the foibles of the judge who heard the case, it cannot be assumed that he would have behaved irrationally. If he did, it would have been corrected on appeal. Obviously one has to take into account the findings that the Judge made on the case as it was actually presented. For example, if he did not believe anything which the plaintiff said, it may be difficult to show that the different line of argument would have persuaded him to find in his favour. But I do not see how it is relevant for the purposes of the hypothetical exercise to have regard to the Judge’s idiosyncrasies. It must be assumed that he would have behaved judicially’.”
83. The present proceedings constitute a risk that their ultimate purpose will be the re-litigation of the matters dealt with in the Circuit Court proceedings. Mr. McDowell for the plaintiff rightly points out that these proceedings are different in character but will necessarily have to deal in detail with the conduct of those proceedings. 84. It is not just the private interest of litigants that has to be considered, but the significant public interest, in not having a plethora of legal actions which will cover ground already covered in some detail in the course of previous proceedings. This responsibility falls particularly on a court considering an application to strike out proceedings because of alleged abuse of process. 85. In considering if the plaintiff has a reasonable cause of action, the court must take the view that the learned trial judge acted judicially, knew the law, and did not act irrationally. Conclusion 87. The Riordan judgment of O Caoimh J. already quoted is an example of the former. 88. It is important to draw a distinction between what would be regarded in layman’s terms as vexatious and frivolous and how the court defines those terms. The dicta of Barron J. in Farley v. Ireland already referred to is apt. 89. I do not place the present action in the category of the obviously vexatious and frivolous. The issues determined in the Circuit Court would have given the plaintiff’s statable grounds for appeal to the High Court and it would not have been frivolous or vexatious. The loss of a right to appeal is a serious matter. 90. The financial health of the plaintiff is weak. The purpose of the company originally was to lease restaurant premises. No evidence has been adduced of any assets, shareholder funds or bank accounts held. The company seems to have been kept alive for the purpose of litigation. If there is another purpose it has not been revealed to the court. The plaintiff will not be in a position to discharge the defendants’ costs if unsuccessful. 91. The constitutional balance is the right of preservation of access to the courts, as against the certainty that if Gerald Kean and Francis McGagh are successful in their defence of this action the order for costs which should follow, would not be able to be enforced against the plaintiff as the company is only being kept going for the purposes of litigation. 92. While caution has to be exercised by the court to ensure that in a motion hearing, the court does not tread on the right to a plenary hearing, the court does in the circumstances of this case have a duty to conduct a robust enquiry, to establish undisputed evidence to ensure that the plaintiff has a reasonable cause of action, to do otherwise would be an injustice to the defendants who on a successful defence of the plenary hearing, have no chance of recovering their costs. 93. The court also has a public interest duty to ensure that matters already litigated in a court of competent jurisdiction are not re-litigated by other means. 94. The court relies on the second principle enunciated in Fay v. Tegral Pipes Limited & Ors, already referred to that is “to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.” 95. If the court does not accede to an application to strike out the proceedings, it has to decide the issue of security for costs by allowing the plaintiff to proceed if it establishes the special circumstances of a direct causal link between the wrong alleged and the loss to the plaintiff, or in the alternative grant an order for security for costs. 96. There are differences in character between the proceedings in the Circuit Court and the motion for security for costs in the High Court. 97. One was a full plenary hearing with no transcript or written judgment. Apart from the affidavits filed on behalf of the defendants this Court has little information about that plenary hearing on 16th and 17th November, 2004. The affidavits of Fatima Zhora Azizi sworn on 2nd November, 2011, provide no information on the substance of that hearing. Despite those affidavits provided by the defendants there are significant gaps in respect of the plenary hearing and earlier interim hearings. 98. The court is in a better position in respect of the motion for security for cost as those were on affidavit and Budd J. delivered a written judgment setting out the arguments and gave reasons for his decision. There are still gaps and the full pleadings have not been exhibited in these proceedings. 99. In respect of the defence of the motion for security for costs before this Court, I would have expected from the plaintiff much more detailed financial information and analysis. The plaintiff could not have been under any illusions since the judgment of Budd J. as to the requirements to furnish detailed financial information. 100. This court would have expected:-
Bank statements. Invoices for the work claimed at €110,000 in the Civil Bill or the sum of €150,000 referred to in Supreme Court judgment and clear acknowledgement by the directors of the company whether this was expenditure by the company or the directors. Details of the rent payments and date paid. Details of the investment in the company by the directors duly vouched. A financial analysis of the company prior to re-entry by the landlord. Details of payments made by the plaintiff to the first and second named defendants in the Circuit Court proceedings. 102. The Civil Bill included a claim for the sum of €110,000 monies expended by the company in refurbishing the premises. Both defendants and Peter Bland have averred that the director Mr. Mennad who gave evidence was not in a position to substantiate this claim by written documentation, and asserts that he misled the court by advancing documentation which was related to expenditure other than on the company or on the restaurant premises in respect of which the company had a lease. The court is surprised that Djemal Mennad has not sworn an affidavit in these proceedings. 103. No documentation is exhibited, in respect of the averments of Gerald Kean and Francis McGagh that advice was given to the directors of the company as to what was required to successfully resist an application for security of costs. The court is not advised as to how and when this advice was tendered. 104. The defendants are concerned that a portion of the judgment of Finnegan J. delivered on 27th March, 2009, in separate proceedings have caused the present proceedings to be initiated. The plaintiff has argued that the judgment has no relevance to the issues before this Court. The court is of the view the proceedings and judgment do have relevance. 105. In the Supreme Court judgment Rayan Restaurants Ltd & Ors v. Flynn & Ors [2007] IESC 28. Finnegan J. stated at p 3:-
The sole issue in the Circuit Court was whether the Lease had been determined by re-entry. Relief against forfeiture, surprisingly, was not claimed although in the particular circumstances of this case where the outstanding rent was tendered immediately upon re-entry one would expect relief to be granted almost as a matter of course. Unless this course was adopted on the express instructions of the Company then the company is entitled to at least an explanation as to why relief was not sought at or immediately after the hearing. No issue was raised in relation to the contents of the premises.” 107. The facts as presented by Finnegan J. recited therein conflict with the documentation and submissions before me. 108. There is no suggestion before this Court, that the plaintiff tendered immediately a cheque for the outstanding gale of rent which was refused. Miss Azizi in her affidavit sworn on 13th August, 2003 and prepared by Hughes Kehoe & Company, Solicitors, at para. 13 averred:-
110. There are some matters in the pleadings where the court can identify matters of undisputed fact and identify conflicts which on discovery may enable the court to make findings of undisputed fact. The purpose of pleadings are to identify the issues between the parties, to assist the court. 111. Mr. McDowell in his submissions to the court that the pleadings were defective and unable to provide the plaintiff with relief against forfeiture relied on extracts from Bullen & Leek & Jacobs precedents of pleadings. 112. Seven separate precedents were furnished to the court. The first two relate to a claim by a landlord for possession firstly for non payment of rent and secondly for breach of other covenants. The next four are precedent defences one of which included a counterclaim. The first six of the draft precedents presented to the court are not of assistance. The last pleading headed “Particulars of Claim for Relief against Forfeiture following Landlord’s peaceable re-entry” is of assistance. 113. Insofar as the draft pleadings submitted on behalf of the plaintiff in these proceedings was suitable it is appropriate to compare the draft with the actual pleadings. 114. The first paragraph of the draft pleadings is a recital of the lease. The lease and assignments were recited at para. 1 of the amended Civil Bill. 115. Paragraph 2 of the draft recites the clause in the lease setting out provisions for re-entry. A copy of the lease was annexed to the amended Equity Civil Bill. 116. The draft pleadings recites the failure to pay the rent. The Civil Bill does not do this, but it is contained in the affidavit of Miss Azizi sworn on 13th August, 2003. 117. The draft pleadings recite at para. 4 the exercise of re-entry. The Civil Bill did not do that but the reply to notice for particulars of 15th December, 2003, at para. 3 described the re-entry by the landlord. 118. The next paragraph of the draft pleadings sets out the willingness of the claimant by letter to pay the sum due but that the landlord has refused it. There is nothing in the pleadings referring to any letter making this offer. Miss Azizi has not averred in her affidavits before this Court, that this was a course of action she followed or was advised to follow. 119. There is a contradiction between the affidavits of Frances McGagh and Gerald Kean on the one hand and Miss Azizi’s affidavits. 120. The draft pleadings furnished states:-
122. In his letter of advice of 16th October, 2003, to Kean, Solicitors, Mr. Francis McGagh, B.L., stated:-
(2) All the parties necessary to grant the plaintiff full relief were joined in the proceedings. (3) The relevant amendment at para. 8 of the plaintiff’s claim in the Civil Bill was notified to the third named defendant’s solicitors on 10th October, 2003 and the first and second named defendant’s solicitors on 17th October, 2003 and sent to the Circuit Court Office on 4th February, 2004 and acknowledged by that Office as received in February 2004. The amended civil bill was before the court. (4) As a matter of law there is nothing in the pleadings to have prevented the learned judge exercising her equitable jurisdiction, to grant relief from forfeiture if the court so wished. However, the court readily accepts that it has no knowledge at present of the detailed legal arguments, presented at the opening or closing of the case or if the learned judge gave reasons for her decision. (5) That a letter was written on 24th August, 2004, from the County Registrar of County Westmeath to the permanent judge of the Circuit Court, His Honour Judge Kennedy an extract from which reads “the problem of a Judge not being able to hear the case due to knowing Barra Flynn now does not arise.” 125. This is an issue which needs to be clarified if it can be. Was there an immediate offer of rent by the plaintiff in July/August 2003 and was it refused by the landlord. What were the state of rent payments from 1st January, 2003 to 23rd July, 2003? 126. Another issue which has not been explained to the court nor has there been any document produced to the court is the nature of the legal relationship between the plaintiff and the first defendant. The statement of claim states that it was intended that the first named defendant would run the restaurant. Was there a written agreement? Who was to be responsible for the rent? Was there any correspondence and contact with the landlord about this? 127. It is the view of the court that these are all matters which touch on the plaintiff having a reasonable cause of action and whether the defendants by their actions acted in a negligent way to deprive the plaintiff of a reasonable chance of success. 128. This Court presumes that the full pleadings in the following actions can be made available to the court:-
(2) Full pleadings on the appeal to the High Court and on the motion for security for costs in the High Court. (3) Full pleadings of the summary proceedings taken by the landlord in the Circuit Court. (4) Full pleadings of the High Court action Rayan Restaurant Limited & Ors v. Flynn & Ors. 130. It is not appropriate to deal with the statute of limitations submissions on these motions. If the defendants are granted relief to strike out, it does not arise. If the plaintiff is permitted to proceed with the action without security for costs it can be dealt with as a separate issue. 131. It is not appropriate for this Court to consolidate High Court plenary proceedings Record No. 2006/1249P Mennad & Azizi v. Kean with those proceedings Fatima Zohra Azizi has acknowledged in sworn evidence before this Court that the plaintiffs do not intend to proceed with this action. 132. The court can rely on all evidence put before it, provided it can make a determination that those facts are undisputed. The burden rests on the defendants to establish the appropriate grounds to strike out the pleadings or any part thereof. The plaintiff has a responsibility to rebut the evidence adduced by the defendants. It also rests on the plaintiff the burden of persuading the court that special circumstances exist and but for the actions of the defendants the company would be able to discharge its legal costs if unsuccessful. 133. The court will adjourn the motion to a specific date. The court will retain seisin of the motion. If the case goes to plenary hearing it is appropriate that another judge of the court hears same.
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