The Supreme Court has dismissed an appeal by Rayan Restaurant Limited, Djamel Mennad and Fatima Zohra-Azizi against a High Court refusal to let them withdraw a notice that ended their claim over the contents of a restaurant in Athlone.
The appeal concerned a claim in detinue and conversion, meaning a claim about possession of property and its alleged wrongful use or retention. The appellants had said they personally paid for the restaurant fit-out and that its equipment and facilities remained theirs. The Supreme Court noted that the claim’s merits had never been determined.
The underlying dispute arose from a tenancy agreement with Catherine Murphy-Flynn’s late husband, Barra Flynn. The judgment’s account says the tenants were removed from the premises around 2002 or 2003 after rent arrears were said to have caused a forfeiture. The landlord was said to have recovered possession by re-entering and changing the locks. The court cautioned that this background came from affidavits and submissions and had not been heard or determined by the High Court.
The second and third appellants’ solicitors served a notice of discontinuance on the respondent’s solicitors on 27 April 2012 and filed it in the High Court Central Office on 4 May. In October 2012, the appellants wrote that they wanted to retract it. They did not issue their application to withdraw the notice until November 2013. The High Court refused the application in January 2014.
The appellants alleged that their lawyers, including senior counsel, had pressured them to discontinue the claim. The Supreme Court stressed that this was their allegation only; the lawyers had not been notified of it or given an opportunity to respond. In separate professional negligence proceedings against their former solicitors, counsel for the appellants had stated in February 2013 that the notice was effective and would not be withdrawn. The Supreme Court said that statement presented a further substantial hurdle, but did not decide whether it amounted to an election that would make a later claim an abuse of process.
The court said it was prepared to assume that a notice of discontinuance could be withdrawn in compelling circumstances. It found no such circumstances here, citing the delay, the appellants’ earlier position in the separate proceedings, and the other circumstances of the case. It said a discontinuance ends proceedings but is not itself a judicial determination of the underlying issues. The appeal was dismissed, leaving the claim discontinued and its merits unresolved.