Title:	Rayan Restaurant Limited & Ors v Murphy
Neutral Citation:	[2018] IESC 70
Supreme Court Record Number:	38/2014
Court of Appeal Record Number:	1135/2014
High Court Record Number:	N/A
Date of Delivery:	11/21/2018
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., McKechnie J., Charleton J.
Judgment by:	O'Donnell Donal J.
Status:	Approved
Result:	Appeal dismissed

O’Donnell J.
McKechnie J.
Charleton J.

Between/

Judgment of O’Donnell J. delivered the 21st day of November 2018

1 This is an appeal from a decision of the High Court (Baker J.) to refuse the appellants’ application to withdraw a notice of discontinuance which, it was accepted, was filed in the Central Office of the High Court by the then solicitors for the second and third appellants on 4 May 2012, having been served upon the respondent’s solicitors on 27 April 2012.

2 This is an unusual application in what are very unusual proceedings. Their long history involves a number of mostly procedural applications which have served to add layers of confusion and complexity to the matter. It should be said that the account which follows should be read with some caution: while the matters included in the affidavits and submissions exchanged between the parties were set out in order to provide background to the current application and appeal, they have not been the subject of any hearing or determination in the High Court.

3 It is difficult at this remove, where the information is necessarily limited and indirect, to form any clear view as to the underlying dispute between the parties that erupted so dramatically almost 15 years ago. Indeed, it is not necessary to do so to resolve the net issue which arises on this appeal. Enough has been said for it to be appreciated that the experience of the appellants with legal proceedings in Ireland has been considerable and unhappy. The dispute between the parties has its roots, it appears, in a tenancy agreement made with the respondent’s late husband, Barra Flynn, in respect of restaurant premises in Athlone, Co. Westmeath. It appears that the tenants were removed from the premises in or about 2002 or 2003 on the basis that a non-payment of rent due had created a forfeiture. It is said that the landlord recovered possession by re-entering the premises and changing the locks. That did not involve legal proceedings. The tenants brought proceedings in the Circuit Court in 2003 seeking an in junction to restore them to the premises, but did not seek relief against forfeiture. The proceedings were dismissed and were appealed to the High Court. The tenant was, it appears, the company Rayan Restaurant Limited, and perhaps for that reason an order for security for costs was made in respect of the appeal. In the event, the appeal in this matter was struck out for failing to furnish security for costs. The appellants had by then commenced separate High Court proceedings which were in turn dismissed by the High Court (Quirke J.) in 2006, on the grounds that they constituted an abuse of process by seeking to re-litigate the issue which had been determined finally in the Circuit Court proceedings. However, that decision was itself appealed to the Supreme Court, and the second and third appellants succeeded partially at least, insomuch as the Supreme Court on 27 March 2009 affirmed the order of the High Court, but with the significant exception of the second and third appellants’ claim in detinue and conversion in respect of the contents of the restaurant premises, which had not been covered in the Circuit Court proceedings. It seems that the Court was troubled, as this court is, by the fact that Plaintiffs’ sense of injustice can be traced to the fact that they lost possession of premises in which they or their company had just spent a significant sum, in circumstances where they were willing to pay rent, and where this had occurred without any court order. Thereafter the plaintiffs’ attempts to litigate these issues were defeated on procedural grounds. Accordingly the court varied the order of the High Court to permit the plaintiffs to proceed with the aspect of the case of detinue and conversion. This was a claim, in proceedings started in October 2005 in the High Court, that the appellants had personally expended a considerable amount on a fit-out of the restaurant, which equipment and facilities they contended remained their property. However, the second and third appellants did not proceed with that claim. As it happens, the claim has never been determined, and its merits are impossible to assess at this remove.

4 It is not now disputed that the then solicitors for the second and third appellants filed a notice of discontinuance of the proceedings in which their claim in detinue and conversion might have been pursued in the Central Office of the High Court on 4 May 2012, having served it on the respondent’s solicitors on 27 April 2012. That step ought to have been an end to the proceedings since costs followed from the discontinuance. However, on 30 October 2012, six months after the filing of the notice, the second and third appellants, now apparently acting on their own behalf, wrote to the solicitors for the respondent stating that they wished to “retract” the notice of discontinuance. Perhaps unsurprisingly, given the contentious history of these proceedings, the solicitors for the respondent replied that any such application would be vigorously defended.

5 However, it was only on 12 November 2013, a full year later, that the second and third appellants issued the notice seeking to satisfy or withdraw the notice of discontinuance. On 15 January 2014, the High Court (Baker J.) refused the relief sought. The second and third appellants now appeal to this court against that order.

6 The sequence of events set out above is both unusual and noteworthy in its own terms, but it is only part of the complex story surrounding this litigation. The second and third appellants had also commenced proceedings against the solicitors who had acted for them in the original court proceedings (“the professional negligence action”). Part of that case included a claim for loss in respect of the contents of the restaurant. It was in the course of preparation for the professional negligence action that the issue arose in relation to the remaining claim for damages for conversion and detinue made by the second and third appellants against the respondent as representative of her late husband. Since, it appears, the professional negligence action was against the appellants’ previous solicitor in relation to the loss of possession of the restaurant premises, there was an overlap between the claims, which it was considered necessary to address. The appellants could not recover the value of the lost contents of the restaurant against the respondent (representing the landlord) and also recover damages from their previous solicitors for that same loss. There is no doubt that the issue was addressed in the preparations for the hearing of the case. I infer from the grounding affidavit of Mr. Mennad that he and Ms. Zohra-Azizi contend that they were pressurised by their then lawyers, and in particular their senior counsel, to issue a notice of discontinuance in these proceedings. This argument was made more explicit in oral submissions from both Mr. Mennad and Ms. Zohra-Azizi. Since the individuals in respect of which the allegation is made are not represented in these proceedings, I should emphasise that I am here merely recording the claim now made by Mr. Mennad and Ms. Zohra-Azizi. It is fair to say that the appellants now express considerable suspicion about the advice they received to issue the notice of discontinuance, because the respondent is a solicitor (as was her late husband) in a prominent firm on the same circuit on which the senior counsel practised. The case did not in fact proceed at that point, a proposed settlement was not accepted, and the senior counsel involved then withdrew from the case because of unhappiness expressed by the appellants as to the course they were being advised to take in relation to the settlement. The professional negligence action then went to trial in February 2013 with a new senior counsel. By this time, the notice of discontinuance had been filed, but the appellants had written to the respondent’s solicitors their intention to seek to withdraw the notice of discontinuance. Accordingly, in the course of the proceedings, counsel for the solicitor defendants in those proceedings sought clarification as to whether the appellants were proceeding with that claim against the solicitors, since it was an alternative claim, and the appellants could not recover the same amount against both the respondent in the present appeal and the solicitors. In the course of those proceedings, therefore, on 18 February 2013, senior counsel for the appellants addressed the matter expressly. He said:-

“Judge I am instructed to say very clearly that the proceedings against Mrs. Murphy and which were referred to earlier and which were the subject matter of the correspondence, flimsy, that was handed to the court, there is no question but that the notice of discontinuance is effective …”

“Judge, the matter of a withdrawal of a notice of discontinuance will not arise.

Very good.”

7 A notice of discontinuance is a simple form, the effect of which should be well understood by everyone involved in proceedings. I do not think anyone involved in any litigation would have difficulty in understanding that it does what it says – it discontinues proceedings, brings them to end and gives rise moreover to an obligation to pay costs. What might be surprising to a litigant is the suggestion that such a step is not irrevocable. The question of whether it is possible to withdraw a notice of discontinuance was the subject of a decision of this court in Smyth v. Tunney [2009] IESC 5, [2009] 3 I.R. 322. In that case, Finnegan J. pointed out that no example had been cited of a court in this jurisdiction, or in the United Kingdom, entertaining such an application. However, like the Supreme Court in that case, and indeed the High Court in the present case, I am prepared to proceed on the basis that the court may have a jurisdiction to permit a party to withdraw a notice of discontinuance, but it is a jurisdiction that could only be exercised in compelling circumstances.

8 While I recognise that the appellants have been embroiled in litigation for a considerable time, that they feel strongly that they were treated unjustly, and that they consider that the legal system has compounded rather than remedied the injustice they perceive, this is not a case where there is a compelling reason to allow the notice of discontinuance to be withdrawn. It would, in my view, require very much more than the generalised complaints made by the appellants to allow a party to set aside a notice of discontinuance. This is not so much because a notice of discontinuance has a particular sanctity, but rather that it has an unavoidable simplicity. It does what it promises: it brings the proceedings to an end. It does not itself prevent further proceedings being issued, and does not amount to a judicial determination of the matters raised. However, it cannot be set aside and proceedings revived where, in the words of Finnegan J. in Smyth v. Tunney [2009] IESC 5, [2009] 3 I.R. 322, the decision to do so was conscious and advised. That is because, although served unilaterally, it is not a unilateral document. The other party to proceedings is entitled to treat the proceedings as at an end. Furthermore, the opposing party is entitled to treat the solicitor acting for the appellant as having the authority to issue the notice, and in my view, absent compelling circumstances, it is appropriate that a plaintiff is bound by the actions of his or her solicitor in issuing and filing such a notice. If, as the appellants now contend, the notice ought not to have been issued, and indeed that its issuance was the result of some wrongdoing on the part of their lawyers, (and it has to be emphasised that this is merely alleged in general terms, that what is alleged is suggestive of disagreement and misunderstanding and a fractious relationship with their lawyers rather than anything approaching undue pressure or duress and that the lawyers involved have not been notified of this claim or given any opportunity of putting their side of the story) then that may at best give rise to a claim by the appellants against those lawyers, in which the transactions between them could be the subject of a proper, fair hearing. However, this would not normally in itself be a ground for rendering invalid, or otherwise permitting the withdrawal of, a notice of discontinuance which was delivered to the other party and the Court and which neither the defendant nor the court had any reason to doubt.

9 Furthermore, the fact that the appellants delayed in raising the issue, and, having raised it, delayed for a further year before issuing the notice of motion, is an additional reason not to permit the appellants to withdraw the notice of discontinuance, particularly given the long and tangled history of these proceedings. Moreover, in this case there is the further, telling fact that in separate proceedings, the appellants, through counsel, expressly stated that the notice would not be withdrawn. That was an election made, no doubt, in the belief that it may have bolstered the claim against their previous solicitors, and indeed, in the light of the relevant law, it is easy to see why the concession was made. However, I am quite satisfied that it presents a further substantial hurdle to granting relief to the appellants on this motion. Mr. McGuckian has argued that a formal election to pursue one of two alternative courses may mean that it would be an abuse of process to pursue the other course in subsequent proceedings. It is not necessary to decide that issue here. It is, I consider, sufficient to decide that in all the circumstances of this case, and in the light of the case law, it is not possible to permit the appellants to revive these proceedings and prosecute them further. I recognise that the appellants have a sense of grievance about the way this matter has been dealt with by lawyers and the court system, compounded by the fact that the respondent and her late husband are lawyers. But this dispute goes back to 2002. In 2009 the decision of the Supreme Court salvaged an important part of the claim, and set the case on a path where there might be a full hearing. It is indeed regrettable that the claims made by the appellants have never been the subject of a full oral hearing, and that even after the decision of the Supreme Court had the effect of setting the proceedings on a course which would have allowed the claims to be heard that did not happen. Those proceedings were discontinued. Although the appellants now complain about that course they did allowed it to be publicly reaffirmed in separate proceedings in February 2013 and it was only after those proceedings were determined that they belatedly sought to set aside the discontinuance. Further time has now elapsed. It is open to doubt that it would be possible to have a full and fair hearing about these matters if the notice was set now aside, but in any event I am satisfied that the law does not permit such a course at this stage, in the light of all that has occurred. Accordingly, the appeal will be dismissed.