The High Court has struck out Philip O’Brien’s assault and battery claim against all defendants except receiver Simon Coyle, finding the claims against the bankers and accountants named in the proceedings were bound to fail. It declined to dismiss the claim against Mr Coyle at this stage, saying the evidence about his relationship with the caretaker tenant was incomplete.
Mr O’Brien seeks €6.5 million over an alleged assault at a property at 84 Poleberry, Waterford, on 26 April 2014. The judgment records that he admitted breaking down the door to enter while another person was in occupation. He alleges that the caretaker tenant, Ayodeji Tunde Durojaiye, used excessive force to stop him. Mr Durojaiye was not a defendant in this case.
The property had been placed in receivership in 2011 after Mr Coyle’s appointment by Investec Bank plc. The judgment says Mr O’Brien had ceded possession to the receiver, then later demanded rent from tenants. After tenants moved out, Book a Room The Accommodation Company Limited arranged for Mr Durojaiye, who worked for security firm Crystal Contract Services, to occupy the property as a caretaker tenant for €200 a month. The stated purpose was to prevent further trespass.
The defendants applied to strike out the proceedings as unsustainable, frivolous or vexatious, an abuse of process, and disclosing no reasonable cause of action. The court had previously invited further submissions on whether any defendant could be vicariously liable for the alleged assault.
The judge found no evidence that the named bankers or Mazars partners had directed or interfered with the receiver’s actions. The court struck out the claims against all defendants other than Mr Coyle under Order 19, rule 28 of the Rules of the Superior Courts. It said the plaintiff had advanced no sustainable basis for holding those defendants liable for an assault allegedly committed by the caretaker tenant.
As to Mr Coyle, the court said the existing evidence did not show that he controlled how Mr Durojaiye performed the task of preventing trespass. It also noted that it had no affidavit from Mr Coyle on this issue and had not seen the tenancy agreement in force at the time. Further evidence in the substantive proceedings might clarify the relationship and could potentially support a claim of agency or de facto employment.
The court described the claim against Mr Coyle as appearing particularly unmeritorious and more likely to fail than succeed on the evidence then available. But it held that the claim could not yet be said to be bound to fail, and therefore allowed it to continue. The judgment does not determine whether an assault occurred or whether Mr Coyle is liable.