The High Court struck out paragraphs 5 to 16 and paragraph 18 of Dolores Moran’s statement of claim, along with particulars relevant to those paragraphs, in a dispute with the Minister for Health and Children. It left paragraphs 1 to 4 and most of paragraph 17 intact.
The ruling, delivered by Mr Justice de Valera on 19 March 2009, followed a preliminary issue ordered in November 2003. The issue was whether the claim, or parts of it, were barred or should be dismissed as an abuse of process because they arose from matters that could have been raised in earlier judicial review proceedings.
Moran began the present action by plenary summons on 27 July 2001. Her statement of claim followed on 15 February 2002. The earlier judicial review proceedings against the same defendant had been dismissed by the High Court in December 1997, according to the judgment’s description of the preliminary issue. The judgment also refers to a decision by President of the High Court Frederick Morris on 15 December 1998. It records that no appeal was brought against Morris’s decision.
The court heard oral argument and written submissions in October 2006. Applying the rule in Henderson v Henderson, the judge said a party will generally not be allowed to raise in later proceedings matters that could, with reasonable diligence, have been included in earlier litigation, except in special circumstances.
The judge attached particular importance to the absence of an explanation for why the matters now relied on were omitted from the judicial review proceedings, and to the absence of an appeal or an apparent application to revisit or review the earlier decision. He accepted the defendant’s submission that the failure to seek relief concerning the “Acting Up” agreement brought the claim within that rule. No special circumstance had been presented.
The judge also rejected the submission that a Government department should be treated differently from other defendants under the rule. The order struck out the specified parts of the statement of claim; the judgment did not strike out the entire claim.