Serial litigant’s case over terminated contract remitted to High Court

About this case:

• Judgment:
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However, in a display of latitude towards the appellant, who was a litigant in person, the Supreme Court set aside an order of costs made in his absence.

The appellant, Kevin Tracey, was a chartered engineer by qualification and was allegedly formerly entered into a contractual arrangement with the respondents, a firm of consulting engineers.

This contract was terminated, and the appellant brought proceedings seeking damages from the termination. On 6th December 2010,Kearns P held that the proceedings were not defamation proceedings, that the appellant had no right to a jury trial, and, for that reason, ordered the matter should be transferred to the non-jury list.

The Supreme Court was faced with two questions: whether the High Court should have proceeded with the hearing in the appellant’s absence; and whether the proceedings could properly be described as “defamation” proceedings which entitled the appellant to a trial with a jury.

It was noted that the Statement of Claim made no reference to defamation. The only related reference was to the allegation that on the day the contract was terminated the firm’s staff lined up at the windows and stared at the appellant as he transferred his belongings from the office to his car.

The definition of defamation was identified as that contained within s.6(2) of the Defamation Act, 2009. The essential element, was identified as being that there must be some statement that tends to injure a person’s reputation in the eyes of reasonable members of society.

While it was acknowledged that defamation could perhaps consist of conduct as well as words, it was found that the pleas went no further than those of emotional harm and psychological damage, and humiliation, embarrassment and distress, which were said to have been caused, both to the appellant and his wife, by reason of the alleged dismissal.

The Supreme Court then turned to the chronology of events which occurred prior to the appealed High Court order.

The appellant was not present, nor represented, when the order appealed against was made. He claimed the judge was biased against him, first in having previously required satisfactory and clear medical certificates prior to the hearing, to explain his repeated absences from the Court, and second in proceeding to determine the issue of the mode of trial in the appellant’s absence.

It was acknowledged that explanations had now been offered for the absence of the applicant and his representative.

However, the Court observed that “The fact that the appellant is a litigant in person does not alter the duties he owes a court, or his obligation to comply with the rules of court. That fact does not alter, either, the procedure which would normally be followed in a case like this.”

Where a judgment or order is made in the absence of one party through inadvertence or mistake, the accepted procedure is for that party to explain such absence to the court, and immediately apply to have such judgment or order set aside. However, the appellant instead appealed, causing delay.

It was noted that the appellant was a serial litigator, and that there had been repeated adjournment applications in this, and other pieces of litigation in which the appellant was involved, due to the appellant’s inability or incapacity to attend court due to illness.

In November the High Court had indicated to a gentleman who attended court on behalf of the appellant that, in the absence of a medical report of a detailed nature, any litigation in which he was involved was likely to be dismissed.

The Supreme Court found this to be entirely correct, with no indication of bias or any impropriety.

By the 6th December, 2010, the High Court still had no clear explanation as to the nature, gravity or likely duration of the appellant’s illness. There was no adequate information as to why he himself, or any representative of his, was absent, or why there was no comprehensive medical report.

The President ordered, therefore, that the notice of trial be set aside, and directed that the proceedings be transferred from the Dublin jury list into the non-jury list. He awarded costs against the appellant.

The Supreme Court found that there could be no doubt that the judge acted entirely correctly on the information available to him, in an area where he was exercising the court’s inherent discretion to conduct and manage a procedural step in litigation.

After the appeal was filed, no further steps were taken until the 18th February, 2015, when the Supreme Court office sent a letter to the appellant, indicating that the office was conducting a review of all appeals which remained uncertified, with a view to ensuring that there was no undue delay with proceeding with any of the appeals, and disposing of those which it was not intended to pursue.

When the matter first came before the Supreme Court on the 13th March, 2015, a question arose as to whether, in fact, the entire claim had actually been entirely struck out by the High Court. However, the appeal did eventually come on for hearing on the 15th July 2015.

The appellant submitted that the High Court judge was biased against him, that the High Court judgment indicated a predisposition on the judge’s part to strike out or dismiss the proceedings, that the case was listed for mention only on the 6th December, 2010, and not for hearing, and that the President had no jurisdiction to determine the matter.

The Supreme Court entirely rejected any imputation that the President of the High Court was biased, or in any way acted improperly. The appellant’s claim was not, in fact, dismissed; instead, a procedural order of far lesser import was made.

With regards to the correctness of that decision, it was found that defamation requires explicit and clear pleading. It cannot be implied or inferred. As no motion to amend the pleadings, so as to specifically plead defamation, was ever brought in the High Court, the High Court’s decision was found to be the right one.

However, giving the appellant maximum latitute as a litigant in person, the Supreme Court set aside the part of the order relating to costs.

It followed that the claim, under a contract for services, should be remitted to the High Court, and heard by a judge sitting alone.