Kearney & Anor v J&E Davy & Ors (Approved) (Rev1) [2023] IEHC 18 (18 January 2023)

Kearney & Anor v J&E Davy & Ors (Approved) (Rev1) [2023] IEHC 18 (18 January 2023)

The application to strike out the plaintiff’s claim was refused because, given the allegations of fraud, the possibility of clandestine activity, and prima facie evidence of lack of candour by Davy, it was not clear beyond doubt that the plaintiff could not succeed. The existence of disputed facts and the potential for further evidence to emerge at trial or through discovery precluded summary dismissal.

Citation
[2023] IEHC 18
Parties
Plaintiff: Patrick Kearney; Plaintiff: Kilmona Holdings Limited; Defendant: J&E Davy, T/A Davy; Defendant: Kyran McLaughlin; Defendant: Tony Garry; Defendant: Brian McKiernan; Defendant: Barry Nangle; Defendant: David Smith; Defendant: Tony O'Connor; Defendant: Finbarr Quinlan; Defendant: Joseph McGinley; Defendant: Fiona Howard; Defendant: Donal O'Mahony; Defendant: Anthony Childs; Defendant: Pat Lyster; Defendant: Barry King; Defendant: Barry Murphy; Defendant: Eamonn Reilly; Defendant: Stephen Lyons T/A The O’Connell Partnership
Jurisdiction
Ireland
Judgment Date
18 January 2023
Procedural Posture
Commercial Court Civil Proceedings / Interlocutory Application to Strike Out Claim Pre Trial
Outcome
Defendants' application to strike out the proceedings refused; claim to proceed to trial.
Legal Topics
Fraudulent Misrepresentation, Strike Out Application, Abuse of Process, Clean Hands Doctrine, Conflict of Interest, Discovery, Settlement Agreement
Commercial Law Contract Law Equity Banking Law Fraudulent Misrepresentation Strike Out Application Abuse of Process Clean Hands Doctrine +3 more

Case Brief

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Parties

Patrick Kearney

Plaintiff

Kilmona Holdings Limited

Plaintiff

J&E Davy, T/A Davy

Defendant

Kyran McLaughlin

Defendant

Tony Garry

Defendant

Brian McKiernan

Defendant

Barry Nangle

Defendant

David Smith

Defendant

Tony O'Connor

Defendant

Finbarr Quinlan

Defendant

Joseph McGinley

Defendant

Fiona Howard

Defendant

Donal O'Mahony

Defendant

Anthony Childs

Defendant

Pat Lyster

Defendant

Barry King

Defendant

Barry Murphy

Defendant

Eamonn Reilly

Defendant

Stephen Lyons T/A The O’Connell Partnership

Defendant

Procedural Posture

Commercial Court Civil Proceedings / Interlocutory Application to Strike Out Claim Pre Trial

Legal Issues

  1. 1 Whether the plaintiff's claim should be struck out as bound to fail due to alleged knowledge of facts negating inducement by fraudulent misrepresentation
  2. 2 Whether the proceedings constitute an abuse of process or are frivolous/vexatious
  3. 3 Whether the plaintiff's lack of clean hands bars equitable relief

Ratio Decidendi

The application to strike out the plaintiff’s claim was refused because, given the allegations of fraud, the possibility of clandestine activity, and prima facie evidence of lack of candour by Davy, it was not clear beyond doubt that the plaintiff could not succeed. The existence of disputed facts and the potential for further evidence to emerge at trial or through discovery precluded summary dismissal.

Court Disposition

Defendants' application to strike out the proceedings refused; claim to proceed to trial.

Orders

  • Parties to engage to resolve outstanding matters and provide draft agreed order to Registrar if possible.
  • Case listed for mention one week from judgment delivery, unless parties notify Registrar otherwise.